1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 39763977 OF 2020
(arising out of SLP(C) Nos. 1338413385/2019)
The Project Director, Project
Implementation Unit …Appellant(s)
Versus
P.V. Krishnamoorthy & Ors. …Respondent(s)
With
CIVIL APPEAL NOS. 39783980 OF 2020
(arising out of SLP(C) Nos. 1609816100/2019)
CIVIL APPEAL NOS. 39813984 OF 2020
(arising out of SLP(C) Nos. 1857718580/2019)
CIVIL APPEAL NOS. 39853991 OF 2020
(arising out of SLP(C) Nos. 1916019166/2019)
CIVIL APPEAL NO. 3992 OF 2020
(arising out of SLP(C) No. 18586/2019)
CIVIL APPEAL NOS. 39933994 OF 2020
(arising out of SLP(C) Nos. 17751776/2020)
Signature Not Verified
CIVIL APPEAL NOS. 39953998 OF 2020
(arising out of SLP(C) Nos. 17771780/2020)
Digitally signed by
DEEPAK SINGH
Date: 2020.12.08
13:26:49 IST
Reason:
2
CIVIL APPEAL NOS. 39994001 OF 2020
(arising out of SLP(C) Nos. 17811783/2020)
J U D G M E N T
A. M. Khanwilkar, J.
1. Leave granted.
These appeals emanate from the common judgment and
2.
1 2
order of the High Court of Judicature at Madras holding the
notifications issued under Section 3A(1) of the National Highways
3
Act, 1956 for acquisition of specified lands for
development/construction of ChennaiKrishnagiriSalem
4
(National Corridor) 8 Lanes new National Highway (NH179A and
NH179B) being part of the larger project “Bharatmala Pariyojna
5
– Phase I ”, as illegal and bad in law on the grounds stated in the
impugned judgment.
THE PROJECT
1 dated 8.4.2019 in W.P. Nos. 16146/2018, 16630/2018, 16961/2018, 19063/2018,
19385/2018, 20014/2018, 20194/2018, 20625/2018, 20626/2018, 20627/2018,
20647/2018, 20764/2018, 20969/2018, 21242/2018, 22334/2018 and 22371/2018 –
for short, “the impugned judgment”
2 for short, “the High Court”
3 for short, “the 1956 Act”
4 for short, “C-K-S (NC)”
5 for short, “the Project”
3
3. The Project (Bharatmala Pariyojna Phase I) has been
conceived as a new umbrella program for the highways sector
that focuses on optimising efficiency of freight and passenger
movement across the country by bridging critical infrastructure
gaps through effective interventions like development of
Economic Corridors, Inter Corridors and Feeder Routes (ICFR),
National Corridor Efficiency Improvement, Border and
International connectivity roads, Coastal and Port connectivity
roads and Greenfield expressways, traversing across around
24,800 kms in PhaseI. In addition, Phase I also includes
10,000 kms. of balance road works under National Highways
6
Development Program . The estimated outlay for Phase I came to
be specified as Rs.5,35,000 crores spread over 5 years. The
objective of the Program is stated as optimal resource allocation
for a holistic highway development/improvement initiative. The
two distinguishing features are said to be effective delegation in
appraisal/approval of individual project stretches and
encouraging State Governments to participate in the development
process through ‘Grand Challenge’. This Project intends to
further the objective of the NHDP, which was being implemented
6 for short, “NHDP”
4
in the past and had reached level of maturity. Resultantly, it was
thought appropriate to redefine road development and have a
macro approach while planning expansion of the national
highways network with focus on recasting road development by
bridging critical infrastructure gaps. The Program envisages a
corridor approach in place of the existing packagebased
approach which has, in many cases, resulted in skewed
development referred to therein, causing impediment in seamless
freight and passenger movement.
4. The components and outlay of the Project, as approved by
7
the Cabinet Committee on Economic Affairs to be implemented
over a period of 5 years i.e. 20172018 to 20212022, provide for
the breakup of length of the different components and the outlay
therefor. Although the Project stretches had been identified
taking into account integration of economic corridors with the
ongoing projects under NHDP and infrastructure asymmetry in
major corridors, an express discretion has been bestowed on
Minister – Road Transport & Highways to substitute/replace upto
15% length of 24,800 kms. for the Project (PhaseI of program) by
other suitable projects, if development of certain identified
7 for short, “the CCEA”
5
stretches cannot be taken up on account of issues pertaining to
alignment finalisation, land availability and other unforeseen
factors whilst retaining the target and budget proposed for Phase
I.
5. In furtherance of the Project, a meeting was held on
19.1.2018 under the Chairmanship of Secretary (Road Transport
& Highways) for optimising Economic Corridors in the State of
Karnataka, Andhra Pradesh, Tamil Nadu and Kerala identified
under the Project, which was also attended by Member (P),
8
National Highway Authority of India , Joint Secretary of the
9
Ministry of Road Transport & Highways and CGM (T), NHAI. The
members deliberated upon the micro aspects of the section
delineated as ChennaiMadurai in the State of Tamil Nadu, as
was done in respect of other sections of the concerned State.
After due deliberations and considering all aspects, the
Committee proceeded to record its unanimous opinion in respect
of stretch/section referred to in the Project – CKS (NC) and
10
ChennaiMadurai (Economic Corridor) in the State of Tamil
Nadu, as follows:
8 for short, “the NHAI”
9 for short, “the MoRTH”
10 for short, “C-M (EC)”
6
“2.4 ChennaiKrishnagiriSalem (National Corridor) &
ChennaiMadurai (Economic Corridor):
(i) The traffic from Chennai bound to
Salem/Coimbatore and Pallakad (Kerala) currently
use the ChennaiKrishnagiri section of the Golden
Quadrilateral (ChennaiBengaluru) and the
KrishnagiriSalem section of the NorthSouth
corridor or the ChennaiTindivanamUlundurpet
section of the ChennaiMadurai Economic corridor
and the UlunderpetSalem Intercorridor route,
thereby congesting ChennaiKrishnagiri section of
Golden Quadrilateral and ChennaiTindivanam
(72,000 PCU) – Ulundurpet (47,000 PCU) section of
the ChennaiMadurai Economic Corridor.
Accordingly, it was decided that instead of 6/8
laning of Tindivanum Trichy section, a crowflight
greenfield alignment be developed between
Chennai and Salem via Harur under National
Corridor Efficiency Improvement. This will not only
reduce the distance between Chennai and
Salem/Coimbatore by 40 km but also diversify the
traffic from the congested ChennaiKrishnagiri
section of Golden Quadrilateral and Chennai
Ulundurpet section of the ChennaiMadurai
Economic Corridor.
(ii) It was also observed that instead of 6/8
laning of TovarankuruchiMelurMadurai section
(64 km) of the ChennaiMadurai Economic
Corridor, it would be better to develop
TovarankuruchiNatham section (27 km) as the
MaduraiNatham stretch is already being developed
as a feederroute, which will reduce the Trichy
Madurai distance by 8 km and would result into
diversification of traffic from Tovarankuruchi to
Madurai via Natham and via Melur.”
It was also decided in the said meeting that the CCEA shall be
apprised of the proposed alignment in the upcoming biannual
update.
In the backdrop of this decision, notifications under Section
6.
2(2) of the 1956 Act came to be issued, declaring the
7
stretch/section from Tambaram (Chennai) to Harur as NH179B
and from Harur to Salem as NH179A. Consequent to such
declaration, notifications under Section 3A(1) of the 1956 Act
specifying the lands proposed to be acquired for the national
highway(s), came to be issued for the concerned
stretches/sections, which was also duly published in the local
newspapers.
PROCEEDINGS BEFORE THE HIGH COURT
7. The notifications under Section 3A of the 1956 Act were
challenged by the affected land owners and also by way of public
interest litigation. In addition, in Writ Petition No. 21242/2018,
the notifications issued under Section 2(2) of the 1956 Act
declaring the concerned stretches/sections being NH179A and
NH179B respectively, came to be challenged.
8. The High Court considered challenges to the stated
notifications on diverse counts by way of a common judgment,
which is impugned in these appeals. The High Court formulated
15 questions, which arose for its consideration in the context of
8
the challenge to the respective notifications. The same read
thus:
“(i) Whether the Writ Petitions are maintainable, since all
that has been done by the respondents is to notify their
intention to acquire the lands by publishing a notification
under Section 3A(1) of the Act and the petitioners cannot be
stated to be aggrieved;
(ii) Whether the entire land acquisition proceedings are
wholly without jurisdiction as a declaration under Section
2(2) of the Act enables only to declare an existing highway,
as a National Highway and not for creating a National
Highway from a nonexisting road or a plain land;
(iii) Whether if the project is allowed to be implemented
without prior environmental clearance, would it be against
the principles of sustainable development and would violate
the provisions of the Articles 19, 46, 48A and 51A of the
Constitution of India;
(iv) Whether there is a need for the proposed project
Highway given the statistics regarding the Passenger Car
Units in the existing three highways;
(v) Whether there is any hidden agenda for the proposed
project and whether it was intended to benefit a chosen few;
(vi) Whether ChennaiSalem proposed highway project
was not even considered as a viable proposal, when lots were
invited under Bharat Mala Priyojana and ChennaiMadurai
proposal was found to be viable resulting in appointment of
the consultant (Feedback), could there have been a change of
the project after appointment of the Consultant for a
different project;
(vii) Whether the respondents who had originally notified
the project between the Chennai and Madurai could have
changed the same after the tender for awarding the
consultancy contract was finalised for ChennaiMadurai
Section;
(viii) What would be the impact of the proposed project on
Forest lands, Water Bodies, Wild Life, flora and fauna as
admittedly the proposed alignment passes through all these
areas;
(ix) Whether public hearing is a prerequisite and should it
precede any step that may be taken under the provisions of
the Act;
9
(x) Whether public consultation which includes public
hearing at site should have preceded the land acquisition
proceedings or at what stage it is required to be done;
(xi) If the notification as initially notified by the Central
Government (ChennaiMadurai) was modified is the draft
feasibility report liable to be scrapped, as the award of
consultancy contract was entirely for a different project;
(xii) Whether the report prepared by the Consultant
(Feedback) contains plagiarized contents, whether it was
prepared in great haste, replete with errors apparent on the
face of the record and should the report be held to be an
outcome of nonapplication of mind;
(xiii) Whether guidelines prescribed in the Indian Highway
Capacity Manual were ignored while preparing the draft
feasibility report;
(xiv) Whether on account of the reduction of the right of
way in various sections including the proposed alignment,
which passes through Forest area, whether the scope of the
project stood totally amended and whether the respondents
can proceed in the manner they propose to do.
(xv) Whether the feasibility report has failed to analyse the
financial consequences of the ChennaiSalem express way
becoming an additional toll way or competing road to the
existing toll way and thus triggering a series of contractual
obligations under the present concessional agreements that
would get extended by 50 to 100% of the remaining period.
…..”
9. The High Court, at the outset considered the preliminary
objection regarding maintainability of writ petitions being
premature, as raised by the NHAI and the Union of India. In
that, the stated notifications under Section 3A(1) were only
expression of intention to acquire lands and all objections thereto
could be considered by the designated authority at the
appropriate stage. Further, the challenge to the said notifications
under Section 3A could be entertained by the High Court only if
10
the competent authority had taken recourse to that option as a
colourable exercise of power. And it was not open to the Court to
substitute its own judgment for the judgment of the Government
as to what constitutes public purpose. The High Court noted
that ordinarily, the constitutional Courts would be loath to
interdict any land acquisition process at the inception. However,
it then went on to observe that the same is a selfimposed
restriction. Whereas, the circumstances of the present case
would warrant interference at the very threshold. Further, the
land owners/losers cannot be made to wait till the final outcome
of the decision of the competent authority and more so, when it is
a case of highhanded action of the officials. The High Court
11
noting the decision in State of Bombay vs. R.S. Nanji and
12
observed that
Somawanti & Ors. vs. State of Punjab & Ors. ,
if the constitutional Court is convinced that the impugned
notifications are the outcome of colourable exercise of power by
the authorities concerned and the decision being replete with
irrationality, unreasonableness and arbitrariness, ought to
intervene at the threshold.
11 AIR 1956 SC 294 = 1956 SCR 18
12 AIR 1963 SC 151 = (1963) 2 SCR 774
11
10. The High Court then proceeded to examine the next point
pertaining to the validity of notifications issued under Section
2(2) of the 1956 Act. The challenge on this count was founded on
the argument that the prerequisite for issuing such notifications
to declare a highway as a “National Highway”, is that, it should
be a preexisting State highway. For, in terms of powers
conferred in Entry 23 of List I (Union List) of the Seventh
Schedule, the Parliament is empowered to make a law limited to
declaring an existing highway to be a “National Highway”.
Whereas, the State legislature has exclusive power to notify a
new highway, as it alone is competent to enact laws concerning
roads, bridges, ferries etc. not specified in List I. The argument
regarding stated notifications under Section 2(2) of the 1956 Act
being violative of Articles 257(2) and 254(4) of the Constitution,
has been referred to in paragraph 43 of the impugned judgment.
To wit, only the State Government is empowered to declare a land
or a road to be a highway in terms of the Tamil Nadu Highways
13
Act, 2001 and only such notified highway could be declared as
a National Highway by the Central Government. At any rate, the
Central Government cannot declare an open land passing
13 For short, “the 2001 Act”
12
through the greenfields as a National Highway in exercise of
power under Section 2(2) of the 1956 Act and consequently, the
power under Section 3A of the 1956 Act cannot be invoked in
respect of such open lands. The High Court negatived this
argument of the writ petitioners by relying on the decision of the
same High Court in B. Nambirajan & Ors. vs. District
14
, which
Collector, Kanyakumari District, Nagercoil & Ors.
had followed the exposition in Jayaraman & Ors. vs. State of
15
Tamil Nadu & Ors. . The High Court opined that where the
Central Government is satisfied that for public purpose, any land
is required for building, maintenance, management or operation
of a National Highway or part thereof, it may, by a notification in
the official gazette in exercise of powers under Section 2(2) of the
1956 Act issue declaration and also initiate follow up action
including notification under Section 3A. In substance, it is held
that the Central Government had sufficient power to acquire even
open greenfields land for the purposes of construction of
National Highways or part thereof. (This part of the decision has
14 CDJ 2018 MHC 2862
15 2014 SCCOnline Madras 430
13
been challenged by the appellant in appeal arising out of SLP(C)
No. 18586/2019).
11. The High Court then proceeded to examine point No. (iii) as
to whether prior environmental clearance was imperative before
issuing notifications under Section 3A(1) and at what stage of
acquisition proceedings such environmental clearance ought to
be made precondition. For dealing with this contention, the
High Court noticed decision of the Division Bench in
J.
16
Parthiban & Ors. vs. State of Tamil Nadu & Ors. and of this
Court in
Karnataka Industrial Areas Development Board vs.
17
C. Kenchappa & Ors. . The decision of the same High Court in
18
M. Velu vs. State of Tamil Nadu & Ors. was also noticed, as
also, the notification issued by the Ministry of Environment,
19
Forest and Climate Change , dated 14.9.2006, to hold that prior
environmental clearance/permission ought to have been obtained
before issuance of notifications under Section 3A of the 1956 Act.
The High Court then noted the principles expounded by this
Court concerning doctrine of “public trust” in
M.C. Mehta vs.
16 AIR 2008 Mad 203
17 (2006) 6 SCC 371
18 2010 SCCOnline Madras 2736
19 for short, “the MoEF”
14
20
Kamal Nath & Ors. and M.C. Mehta vs. Union of India &
21
. It also noticed another decision of this Court in
Ors. Raghbir
22
Singh Sehrawat vs. State of Haryana & Ors. and the
exposition of Courts in the United States of America in
23
,
Commonwealth of Massachusetts vs. James G. Watt
24
California vs. Watt , Roosevelt Lathan and Pearline
Lathan, his wife, vs. John A. Volpe, Secretary of the United
25
States Department of Transportation , Arlington Coalition
on Transportation vs. John A. Volpe, Secretary of
26 27
and , and
Transportation Jones vs. District of Columbia
concluded that being a welfare State, the authorities while
implementing the project which, in the opinion of the
Government, is in public interest, cannot turn a nelson’s eye to
reality and forget that protecting agriculture is equally in public
interest. It went on to observe that the interpretation of the
20 (1997) 1 SCC 388
21 (2004) 12 SCC 118
22 (2012) 1 SCC 792
23 716 F.2d.946 (1938)
th
24 683 F.2d 1253 (9 Cir. 1982)
25 455 F.2d 1111
26 458 F.2d.1323 (1972)
27 499 F.2d.502 (1974)
15
relevant provisions in Indian context should lean towards
protecting agriculturists and for that reason, went on to observe
that if the Project is allowed to be implemented without prior
environmental clearance, it would be a gross violation of the
principle of sustainable development and in particular, provisions
of Articles 19, 21, 46, 48A and 51A of the Constitution of India.
12. The High Court then proceeded to consider point Nos. (iv) to
(vi) together. It noted the contention of the writ petitioners that
until the Project (Bharatmala Pariyojna – Phase I) was reviewed
on 24.1.2018 and when the Minister of State – MoRTH replied to
questions in Rajya Sabha about new highway projects under
28
various stages including Detailed Project Reports stage on
5.3.2018, there was no inkling about the proposed Project made
applicable to stretch/section – CKS (NC). Whereas, the
stretch/section identified in the Project was – CM (EC), which
was completely different. Moreover, there was no tangible basis
before the members of the Committee on 19.1.2018, to abruptly
change the ChennaiMadurai (Economic Corridor) CM (EC)
project to one as ChennaiKrishnagiriSalem (National Corridor
Efficiency Improvement) – CKS (NC) or as greenfield
28 f or short, “the DPR”
16
expressways. No document/material had been produced before
the Court in support of the Minutes recorded on 19.1.2018 to
justify CKS (NC) section. If the authorities intended to make
such a change, they ought to have obtained prior
29
approval/clearance from the Public Investment Board and in
principle approval of the Ministry of Finance and the Comptroller
30
and Auditor General in that regard. No audit of project
formulation by CAG was done nor the alignment report and
approval given was as per the DPR guidelines of the MoRTH.
Further, the Consultant – M/s. Feedback Infra Pvt. Ltd.
appointed for the original Project concerning section CM (EC),
was continued for the changed stretch/section without following
the tendering process as predicated by the MoRTH and the Post
Award Portal Guidelines for procurement, preparation, review
and approval of DPR etc. The High Court noted that the
appellants herein (State authorities/NHAI/Union of India) had
supported their action regarding the changed/modified project on
three grounds – (i) existing capacity is fully utilised; (ii) there will
be economic development in general; and (iii) there will be
29 For short, “the PIB”
30 for short, “the CAG”
17
reduction in carbon foot print, as the length of subject
stretch/section was at least 40 kms. less than the corresponding
section falling under CM (EC), as originally conceived. The High
Court noted that the Central Government had not filed any
counter affidavit on the subject matter. The counter affidavit was
filed by the NHAI, which did not touch upon the factual matrix
pointed out by the writ petitioners regarding the circumstances
in which the stretch/section was changed to CKS (NC) except
asserting that it was a policy decision. The High Court was
conscious of the fact that the issues raised by the writ petitioners
were quasitechnical issues, but clarified that as to whether the
stretchsection was part of the Project (Bharatmala Pariyojna –
Phase I) at the first instance, is a question of fact, which ought to
have been answered and clarified by MoRTH. The Court, after
referring to the original Project, noted that CKS (NC) section
does not find place therein. Instead, CM (EC) had been
mentioned at S.No. 19 of the original Project. Further, there was
nothing on record to indicate that the changed stretch/section
had been approved by the Cabinet Committee or the Public
31
Private Partnership Appraisal Committee , as mandated in the
31 for short, “the PPPAC”
18
guidelines issued by the CAG. Thus, the High Court held that
the decision was taken by the Committee in hot haste and
without following necessary formalities and standard operating
procedures specified in that regard. As a matter of fact, no
proper scrutiny of all relevant facts and more particularly,
possible alternatives had been explored before a final decision to
implement such a major project was taken (costing around
Rs.10,000 crores, covering around 277 kms. and construction of
a new National Highway traversing through greenfields). At the
same time, the High Court rejected the allegation about the
hidden agenda for such a change of stretch/section from CM
(EC) to CKS (NC). The High Court found that the allegations
regarding hidden agenda to favour a private limited company
remained unsubstantiated.
13. The High Court then proceeded to examine point No. (vii)
regarding the continuation and appointment of the Consultant in
respect of the changed stretch/section i.e. CKS (NC), although
its initial appointment was in respect of the stretch/section
originally conceived i.e. CM (EC). The High Court recorded
disparaging and condemnatory remarks in reference to
19
continuation of the same Consultant for the changed
stretch/section without following proper procedure. The High
Court also accepted the criticism regarding Draft Feasibility
32
Report prepared by the Consultant being bereft of any credible
material/information, but was replete with mechanical
reproduction of contents resembling with some other projects.
The argument of the Consultant that no other bidder
(Consultant) had challenged its appointment in respect of
changed stretch/section CKS (NC), came to be rejected. The
High Court proceeded to hold that the authorities ought to have
invited fresh tenders and offers from the qualified Consultants as
per the standard operating procedure and ought not to have
continued with the same Consultant for the entirely different
stretch/section – CKS (NC).
14. The High Court then considered point No. (viii) regarding
impact assessment and inprinciple approval to study the impact
of the Project on flora and fauna. The High Court noticed that
the changed stretch/section was to pass through the forest areas
to the extent of 10 kms., yet no prior permission of the Forest
Department had been obtained. Further, no impact assessment
32 For short, “the DFR”
20
analysis was done before taking decision to change the project to
CKS (NC). Also that in the name of the subject project, 100
trees were unauthorizedly felled from the lands in close proximity
with the proposed alignment in the guise of allowing some
persons to remove the damaged trees. The Court also took into
account the inaction of the authorities in some other locations in
the neighbourhood, failing to remove encroachments in the forest
area and the firm stand of the Forest Department for denying
permission to erect even a small bridge to facilitate the villagers
to cross Moiyar river to reach their residence. Taking judicial
notice of that fact, the High Court proceeded to assume that it
was most unlikely that permission will be given for construction
of a new National Highway passing through the forest area. This
aspect had not been seriously considered by the appropriate
authority. The decision, however, was based on a report which
was prepared mechanically on the basis of geomapping without
physical verification on site. Similarly, the proposed alignment
33
was without collecting data of Passenger Carrying Units or
ascertaining the correctness of data (referred to in the report)
collated from the toll plazas. At the end, the High Court noted
33 for short, “the PCUs”
21
that the procedure adopted by the NHAI in asking the Consultant
to carry out the work, which was never the scope of the bid
document, by an oral arrangement, was unacceptable. It then
observed that if the Central Government was still of the opinion
that the subject project concerning section – CKS (NC) is
required to be implemented, then it must comply with the
required formalities of obtaining requisite environmental and
forest clearances/permissions, after undertaking comprehensive
study of the environmental impact.
15. The High Court then proceeded to examine point Nos. (ix)
and (x) together and concluded that a fair procedure ought to be
adopted and the fact that there would be delay if such procedure
is followed, will be of no avail. Prior environmental clearance
must be obtained after a public hearing is held, before the project
is implemented. The High Court then went on to examine the
remaining points for consideration separately; and concluded as
follows:
“101. For all the above reasons, we are of the considered
view that the project highway as conceived and sought
to be implemented is vitiated on several grounds as
mentioned above and consequently, the notifications
issued for acquisition of lands under Section 3A(1) are
liable to be quashed .
22
102. In the result, the Writ Petitions are allowed and the
land acquisition proceedings are quashed.
103. In view of the above, Crl.O.P. No. 22714 of 2018 is
closed. Consequently, connected Miscellaneous Petitions are
closed. There shall be no order as to costs.
104. During the pendency of these Writ Petitions, when we
heard the cases, the learned counsel for the land owners
pointed out that the revenue records were mutated and
stood transferred as Government lands. This had happened
even much prior to issuance of the Notification under
Section 3D of the Act. We had pointed out that such an
action could not have been initiated, as, by issuance of a
Notification under Section 3A of the Act, the Government
only conveyed its intention to acquire the lands.
105. The learned Government Pleader sought to explain by
contending that those entries were only temporary in nature
and that in the event of the lands get excluded from the
project, the entries would stand reverted back.
106. We do not agree with the said stand taken by the
learned Government Pleader at that juncture itself. Now that
we had allowed the writ petitions, all the entries in the
revenue records, which stood mutated, shall be reversed
in the names of the respective land owners and fresh
orders be issued and communicated to the respective
land owners within two weeks thereafter. This direction
shall be complied with within a period of eight weeks
from the date of receipt of a copy of this judgment .”
(emphasis supplied)
16. The High Court in the impugned judgment also took note of
34
other decisions , presumably referred to by the parties during
34 State of U.P. & Ors. vs. Babu Ram Upadhya, AIR 1961 SC 751;
Col. A.S. Sangwan vs. Union of India & Ors., AIR 1981 SC 1545;
Life Insurance Corporation of India vs. Escorts Ltd. & Ors., (1986) 1 SCC 264;
Dwarkadas Marfatia & Sons vs. Board of Trustees of the Port of Bombay, (1989) 3
SCC 293;
State of Tamil Nadu & Anr. Vs. A. Mohammed Yousef & Ors., (1991) 4 SCC 224;
Ujjain Vikas Pradhikaran vs. Raj Kumar Johri & Ors., (1992) 1 SCC 328;
Jilubhai Nanbhai Khachar & Ors. vs. State of Gujarat & Anr., 1995 Supp (1) SCC
596;
23
argument before it. However, in the impugned judgment, no
analysis thereof is found.
THE CHALLENGE
Aggrieved, three sets of appeals have been filed before this
17.
Court. First, by the NHAI, second by the Union of India and
State of Tamil Nadu & Ors. vs. L. Krishnan & Ors., (1996) 1 SCC 250;
Secretary, Ministry of Chemicals & Fertilizers, Government of India vs. Cipla Ltd.
& Ors., (2003) 7 SCC 1;
Delhi Development Authority & Anr. Vs. Joint Action Committee, Allottee of SFS
Flats & Ors., (2008) 2 SCC 672;
Sooraram Pratap Reddy & Ors. vs. District Collector, Ranga Reddy District & Ors.,
(2008) 9 SCC 552;
Bondu Ramaswamy & Ors. vs. Bangalore Development Authority & Ors., (2010) 7
SCC 129;
K.T. Plantation Pvt. Ltd. & Anr. Vs. State of Karnataka, (2011) 9 SCC 1;
Union of India vs. Kushala Shetty & Ors., (2011) 12 SCC 69;
Alaknanda Hydropower Company Limited vs. Anuj Joshi & Ors., (2014) 1 SCC
769;
Jal Mahal Resorts Private Ltd. vs. K.P. Sharma & Ors., (2014) 8 SCC 804;
Rajendra Shankar Shukla & Ors. vs. State of Chhattisgarh & Ors., (2015) 10 SCC
400;
The Industrial Development and Investment Co. Pvt. Ltd. & Anr. Vs. State of
Maharashtra & Ors., AIR 1989 Bom 156;
O. Fernandes vs. Tamil Nadu Pollution Control Board & Ors., (2005) 1 L.W. 13;
George Joseph and Ors. vs. Union of India, 2008 (2) KLJ 196;
New Kattalai Canal and Aerie Pasana Vivasayigal Welfare Association vs. Union of
India & Ors., (2012) 1 MLJ 207;
Madan Malji Kambli & Ors. vs. State of Goa & Ors., 2012 SCCOnline Bom 694;
and
Prithvi Singh & Ors. vs. Union of India & Ors. – of the High Court of Punjab &
Haryana at Chandigarh in CWP 689/2012, dated 16.5.2013.
24
third, by the land owner(s) in reference to rejection of challenge to
notifications under Section 2(2) of the 1956 Act. The grounds
urged in the concerned appeals are more or less recapitulation of
the points canvassed before the High Court and exhaustively
dealt with in the impugned judgment. Besides the oral
arguments, the concerned parties have filed written submissions
as per the liberty given to them by this Court upon conclusion of
the oral arguments through video conferencing (virtual Court
hearing).
18. The arguments were opened by Mr. Tushar Mehta, learned
Solicitor General of India. The gist of the points urged by him
can be stated thus. Writ Petitions filed to assail the notifications
under Section 3A of the 1956 Act including Section 2(2) were
premature. In that, the question whether the acquisition is for
public purpose is a matter to be dealt with by the appropriate
authority in light of the objections filed by the aggrieved persons
in response to the notifications under Section 3A(1) of the 1956
Act, which is merely an expression of intent to acquire the
specified land for construction of national highway under the
Project (Bharatmala Pariyojna – Phase I). He would contend that
25
the High Court also committed manifest error in concluding that
such notifications under Section 3A of the 1956 Act could be
issued only after prior environmental and forest
clearances/permissions are granted in that behalf. The High
Court has misread and misapplied the decision of this Court in
support of that view. It is urged that the acquisition process
initiated under the 1956 Act, which is a selfcontained code, is
completely independent and cannot be fusioned with the
formalities and procedure to be complied with before
commencement of the Project construction work, in reference to
the environment or forest laws. The appellants – NHAI and MoEF
had unambiguously stated before the High Court and reiterate
before this Court that all formalities will be complied with in its
letter and spirit before the construction work of the stated
national highway actually commences. It is essential to
authoritatively decide as to at what stage the appellant – NHAI is
required to obtain the environmental or forest clearance as per
the extant laws including the notification and Office
Memorandum dated 14.9.2006 and 7.10.2014, respectively, of
the MoEF. The applicable notification/Office Memorandum
explicitly excludes the need for a prior environmental clearance
26
for “securing the land”. It is urged that prior environmental
clearances have been ordained before any construction work of
specified project including for preparation of land by the project
management (except for securing the land) is started on the
project. Indeed, before commencement of such work or
preparation, as the case may be, the concerned agency is obliged
to make application in Form1. That may be possible only after
identification of prospective site for the Project and/or activities
to which the application relates. The identification of site for the
construction of national highways becomes possible only upon
completing the process of public hearing consequent to
publication under Section 3A of the 1956 Act. It is then urged
that the High Court justly rejected the argument of the land
owners that open lands cannot be acquired for construction of
national highways or that national highway can be declared only
in reference to an existing highway. He submits that there is
ample power bestowed in the appellant – NHAI and the Central
Government in particular, in terms of the 1956 Act and the
35
National Highway Authority of India Act, 1988 to acquire open
land for the purposes of construction of national highway, as may
35 f or short, “the 1988 Act”
27
be declared under Section 2(2) of the 1956 Act. These
legislations have been enacted well within the legislative
competence of the Parliament being subject specified in List I of
the Seventh Schedule. Similarly, the argument of notifications
being in violation of constitutional provisions relating to executive
powers is misplaced. On the other hand, the notifications issued
under Section 2(2) of the 1956 Act and the follow up notifications
issued under Section 3A of the same Act, proposing to acquire
the subject lands, were fully compliant of the legal requirements.
No violation of any nature can be attributed to the issuance of
these notifications including that the same were not in good faith.
He submits that the question whether the subject land referred to
in the notifications under Section 3A(1) of the 1956 Act is
required for public purpose or otherwise can be and ought to be
answered in reference to the objections taken by the land
owners/aggrieved persons during public hearing. The authority
considering such objection can also consider the question about
the viability and feasibility of the Project. He would contend that
the land acquisition proceedings under the 1956 Act and grant of
environmental clearance are two different and distinct processes.
They operate in different fields. The High Court, therefore,
28
completely misled itself in confusing the issue by holding that
prior environmental and forest clearances ought to be obtained
even before issuing notifications under Section 3A of the 1956
Act. The High Court also completely glossed over the mandate of
Section 3D of the 1956 Act, predicating that the final declaration
thereunder ought to be issued within one year from the date of
publication of notifications under Section 3A, else the
commenced process would be deemed to have lapsed. The
provisions such as Sections 3A to 3J of the 1956 Act, have been
enacted by way of amendment Act of 1997 to ensure speedy
conclusion of acquisition proceedings and prompt execution of
highway projects. By interpretative process, the High Court has
in fact, created an artificial barrier for issue of Section 3D
notification and has rewritten the amended provisions of 1997.
He would submit that the principle expounded by the American
Courts have no bearing in the context of the express statutory
scheme propounded under the 1956 Act and the 1988 Act or for
that matter, under the environmental and forest laws including
the notifications issued thereunder. The latter enactments
(environmental/forest laws) would get triggered when the project
work was to actually commence. In other words, execution of the
29
Project could commence only after such clearances are in place.
It is contended that the High Court proceeded to examine the
need and viability of proposed CKS (NC) sector on erroneous
basis and on assumptions. It proceeded to examine the
comparative merits of different routes, which cannot be
countenanced as it is beyond the scope of judicial review. As a
matter of fact, the High Court has interfered with the policy
decision of the competent authority (the MoRTH) dated
19.1.2018, completely overlooking the discretion bestowed in the
Ministry vide Project (Bharatmala Pariyojna – Phase I) itself,
empowering it to replace/substitute upto 15% length of 24,800
kms. of PhaseI of the Project by other suitable
stretches/sections. The sector of CKS (NC) was finalized by the
Committee in the meeting dated 19.1.2018 for the reasons
recorded in the minutes, including the general principles
governing development of national highways and also reckoned in
the Project. It is contended that the High Court ought not to
have interfered with the judicious and wellconsidered decision
taken by the competent authority. He would contend that even if
the section/project finalised vide minutes dated 19.1.2018 was
not referred to in the original Project, however, as the decision
30
was taken by the competent authority about the
replacement/substitution to the extent permissible, it forms part
of Phase I of Bharatmala Pariyojna (the Project) in place of the
originally envisaged sector of CM (EC). The change was for the
betterment of the area covered under the Project and would pay
dividends in posterity at the micro levels in different ways of
providing access and new opportunities and strengthening the
national road network at the macro level. As regards the
observation made in reference to the Consultant appointed for
the subject Project, it is urged that the same was completely
misplaced and in any case, extraneous for answering the
challenge regarding validity of notifications under Section 3A(1) of
the 1956 Act or for that matter, Section 2(2) of the same Act
issued by the competent authority. As a matter of fact, no relief
was claimed in the concerned writ petitions filed before the High
Court against the Consultant nor its appointment order issued
by the competent authority was under challenge. The Consultant
was duly appointed for the stated Project to be paid on per
kilometre basis, vide contract dated 22.2.2018. Indisputably, no
financial loss will be caused to public exchequer as the
Consultant fees is fixed on kilometre basis only. For, the subject
31
stretch/section [CKS (NC)] involves only 277 kms. as against
the stretch/section originally conceived [CM (EC)] of around 350
kms. Thus, it would entail in less consultant fees than was
envisaged for the originally conceived section for the Project. In
substance, it is urged that the High Court was persuaded to
undertake a roving inquiry despite the official record indicating
that necessary formalities and procedure has been complied with
before declaration of CKS (NC) section as
replacement/substitution of the originally conceived section, and
duly approved by the competent authority. The High Court
should have dismissed the writ petitions. In support of his
submissions, he has relied on the decisions of this Court in
36
Akhil Bharat Goseva Sangh vs. State of A.P. & Ors. ,
(supra),
Sooraram Pratap Reddy K.T. Plantation Pvt. Ltd.
(supra), Kushala Shetty (supra) and Somawanti (supra); He
has also invited our attention to decisions of Punjab & Haryana
37
High Court in
Diljit Singh & Ors. vs. Union of India & Ors.
and of the Madras High Court in B. Nambirajan (supra) and
(supra).
Jayaraman
36 (2006) 4 SCC 162
37 2010 SCC Online P&H 11847
32
19. Mr. S. Nagamuthu, learned senior counsel appearing for the
land owners/aggrieved persons, who had filed writ petitions
before the High Court, urged that notifications under Section
3A(1) of the 1956 Act issued without obtaining prior
environmental clearance from the MoEF in terms of the
notification dated 14.9.2006 are void and bad in law. Moreover,
as per the recommendation of the Environment Assessment
38
Committee , no environment clearance could be given to the
subject section (ChennaiSalem) of the Project and in absence
thereof, it must follow that no construction will be permissible on
the specified lands and thus it cannot be used for the stated
public purpose within the meaning of Section 3A(1) of the 1956
Act. On this count alone, no interference with the decision of the
High Court in setting aside the notifications under Section 3A of
the 1956 Act is necessary. According to him, the High Court has
justly interpreted the sweep of notification dated 14.9.2006,
which has a statutory force and mandates that prior
clearance/permission ought to be taken before the
commencement of acquisition process including issuing
notifications under Section 3A(1) of the 1956 Act. In that, the
38 For short, “the EAC”
33
satisfaction reached by the competent authority that the land
referred to in such notification is required for public purpose,
could be taken forward only upon grant of environmental/forest
clearances. He has placed reliance on the exposition of this
Court in
Karnataka Industrial Areas Development Board
(supra) and of the High Court of Judicature at Madras in M. Velu
(supra), to buttress his submission. He then submits that the
competent authority under the 1956 Act and the 1988 Act are
different. Thus, the application for environmental clearance
cannot be pursued by the competent authority under the 1956
Act, as in law, such application ought to be made by the
competent authority under the 1988 Act before the
commencement of the acquisition process. In other words, the
competent authority under the 1956 Act cannot hasten issuance
of notification under Section 3A(1) in anticipation. He submits
that harmonious reading of the provisions of the 1956 Act and
the 1988 Act go to show that the competent authority under the
1988 Act (NHAI) is expected to initiate the process by
undertaking survey of the land and identifying the land under
Section 16(2) of the 1988 Act; and then submit application for
environment/forest clearance. Further, only after securing
34
essential permission(s) therefor, the notification under Section
3A(1) of the 1956 Act could be issued by the Central Government
to commence the acquisition process of such identified land.
This course is not only desirable, but should be made
compulsory by interpretative process in absence of any
provision in the 1956 Act authorising the Central Government to
return the unutilised land (due to refusal of essential clearances),
to the erstwhile owner (unlike the provisions in the Right to Fair
Compensation and Transparency in Land Acquisition,
39
Rehabilitation and Resettlement Act, 2013 ). He would submit
that the role of the MoRTH, the MoEF and the NHAI is well
defined. In the alternative, it is submitted, that the authority
under the 1956 Act may be permitted to continue with the
acquisition process until the stage of notification under Section
3D(1) of the 1956 Act and to issue such notification only upon
grant of permission/clearance by the competent authority under
the environment and forest laws. This is because upon issuance
of notification under Section 3D(1) of the 1956 Act, the land
would vest absolutely in the Central Government free from all
encumbrances. For that purpose, the expression “shall”
39 f or short, the “the 2013 Act”
35
occurring in Section 3D(1) of the 1956 Act be construed as “may”
and by interpretative process, liberal meaning be ascribed to the
proviso in Section 3D(3) of the 1956 Act. Such approach would
preserve the interest of the land owners, as well as, effectuate the
public purpose underlying the acquisition process.
20. Even Mr. Sanjay Parikh, learned senior counsel espousing
the cause of the land owners and aggrieved persons would
submit that the conclusion reached by the High Court in the
impugned judgment that the acquisition process in question was
vitiated because of the reasons noted in the judgment, needs no
interference. He would submit that the subject section i.e. CKS
(NC) was not part of the original Project (Bharatmala Pariyojna
Phase I) and no tangible reason is forthcoming as to why such a
change was approved by the competent authority, especially
when the State Government was keen on developing the existing
CM (EC) section as a priority project. He submits that the
selection of CKS (NC) section is arbitrary and violative of
guidelines/rules for selection of a national highway. Further, the
stated section traverses through the greenfields and the
agricultural lands including the forest area to the extent of 10
36
kms. Hence, the High Court was justified in concluding that the
decision to change the section from CM (EC) to CKS (NC) was
flawed and unsustainable. The selection of the said section was
in violation of the original Project (Bharatmala Pariyojna – Phase
I) itself, which was based on scientific survey and research
envisaging development of CM (EC) section. The Project
conceived after scientific process had the approval of CCEA and
the authorities specified in ‘Section E’ of the original Project
(Bharatmala Pariyojna) document. It mandates that CCEA
approval is mandatory for projects involving expenditure of more
than Rs.2,000 crores in respect of PublicPrivate Partnership and
if it is an Engineering Procurement & Construction project –
involving expenditure of more than Rs.1,000 crores. No such
approval has been obtained in respect of the subject changed
section/project, although it would involve expenditure upto
Rs.10,000 crores. Moreover, the proposed change would be
permissible only if the State was ready to bear at least 50% cost
of the land acquisition. Even that condition is not fulfilled.
Similarly, no survey of PCUs was undertaken in respect of the
subject section unlike it was done in respect of the CM (EC)
section. No justification is forthcoming as to why CM (EC)
37
section has been completely shelved by the authorities concerned
in terms of the minutes dated 19.1.2018. As per the prescribed
norms in the Project, a new greenfield highway is to be
constructed only when the PCUs of the existing road exceeds
50,000. In the present case, as per the detailed origin–
destination studies, the combined PCUs of the three routes
between ChennaiSalem do not meet the threshold of 50,000
PCUs. Despite that, the change recorded in the minutes dated
19.1.2018 predicates construction of highway through green
fields and that too without prior environmental approvals
therefor. It is clear from the record that the authorities were
aware of the need to obtain CCEA approval when they changed
the scope of the Project from brownfield expansion to greenfield
section between ChennaiSalem. The said change is in violation
40
of the NHAI Works Manual, 2006 . It is in breach of paragraph
1.8.1, which is to be followed uniformally by all units of the NHAI
and can be modified only by the Chairman, after recording
reasons. No modification in the application of the NHAI Manual
in respect of the Project is done. Similarly, paragraph 2.7 thereof
postulates that a package scheme such as the present one,
40 for short, “the NHAI Manual”
38
should receive approval of the Central Government and
individual projects will be approved after the DPR and cost
estimates become available. Further, no fresh tender was issued
by the NHAI for appointment of new Consultant despite the
change of scope of the earlier Project. The Consultant, who was
appointed for the CM (EC) section, was entrusted with the work
of changed section i.e. CKS (NC). The issue regarding improper
appointment of the Consultant has bearing on the challenge to
the subject section of the Project being illegal. Reliance was
placed on the decision of this Court in
K. Lubna & Ors. vs.
41
Beevi & Ors. . It has been held therein that question of law can
be raised at any stage, as long as factual foundation had been
laid. This decision is pressed into service to support the finding
and observations recorded by the High Court concerning the
improper appointment of Consultant for the said section i.e. CK
S (NC). His argument was focussed on the improper appointment
of the Consultant for the subject section of CKS (NC) and
supported the observations made by the High Court in the
impugned judgment in that regard. To that end, reliance is
41 (2020) 2 SCC 524
39
placed on Shrilekha Vidyarthi & Ors. vs. State of U.P. &
42
. In substance, it is argued that the action of the
Ors.
competent authority is replete with undue haste and non
application of mind besides being in violation of the standard
operating procedures applicable to such Project including of not
obtaining prior environmental/forest clearances before issuing
notifications under Section 3A of the 1956 Act. Such clearances
are necessary at the stage of appraisal under notification of 2006,
as the Project pertains to greenfields and being a categoryA
Project. The learned counsel elaborately took us through the
procedure to be adopted by the Expert Appraisal Committee
before according inprinciple approval for the project. He invited
our attention to the MoEF Office Memorandum (O.M.) dated
7.10.2014 to buttress his argument that all environmental
clearances are sitespecific and are required to be obtained
beforehand. He would submit that only after such permission is
granted, the acquisition process be commenced by issuing
notification under Section 3A of the 1956 Act in respect of such
lands for construction of national highway. Alternatively, he
submits that the Court may also consider exempting/excluding
42 (1991) 1 SCC 212
40
the time taken in obtaining environmental clearance from the
period of one year specified in Section 3D(3) of the 1956 Act. He
has highlighted the points taken note of by the High Court in the
impugned judgment and supported the conclusion reached by
the High Court in setting aside notifications under Section 3A(1)
of the 1956 Act. The learned counsel had relied upon the
decisions of this Court in Karnataka Industrial Areas
(supra) and
Development Board State of Uttaranchal vs.
43
Balwant Singh Chaufal & Ors. . Similarly, of the Madras
High Court in (supra), of the Punjab & Haryana High
M. Velu
Court in Diljit Singh (supra) and of the American Courts in
Commonwealth of Massachusetts (supra), California (supra),
(supra),
Roosevelt Lathan and Pearline Lathan, his wife
Arlington Coalition on Transportation (supra) and Jones
(supra)
.
21. Mr. Nikhil Nayyar, learned senior counsel espousing the
cause of land owners/aggrieved persons adopted the
aforementioned arguments and also supported the conclusion
reached by the High Court in the impugned judgment. Most of
43 (2010) 3 SCC 402
41
the points made during his oral submissions have been
articulated by him in his written submissions. He submits that
the impugned notifications under Section 3A as issued, have, in
any case, lapsed by operation of law. On merits, he contends
that the original Project including CM (EC) section, had received
approval of the CCEA. However, the changed section i.e. CKS
(NC) had no such prior approval of the CCEA. There is nothing in
the Project document to authorise swapping of project/section,
as done in the present case in the guise of discretion of 15%. He
submits that reliance placed on the original approved project
enabling exercise of discretion by the MinisterRTH is completely
misplaced. That discretion cannot be invoked for provisioning a
completely different project/section, as in this case between
ChennaiSalem, and moreso when admittedly, three alternative
routes are already available. He invited our attention to the
specific grounds articulated in the writ petition(s) filed by the
aggrieved persons before the High Court, pointing out gross
defects and flaws in regard to the changed section. He would
contend that the authorities cannot walk away with the argument
of policy decision and the limited scope for intervention by the
Courts in that regard. He invited our attention to Bengaluru
42
44
Development Authority vs. Sudhakar Hegde & Ors. to
support the argument that notification under Section 3D of the
1956 Act can be issued after appraisal for grant of environmental
clearance under the notification, 2006. He submits that this
interpretation would be consistent with the scheme of the 1956
Act, as hearing of objection under Section 3C is a mandatory
requirement and must precede the declaration under Section 3D.
In the alternative, he submits that notification under Section 3D
should not be issued until environmental and forest clearances
are obtained in respect of the subject project. He submits that
the decision in Diljit Singh (supra) does not enunciate the
correct legal position. On the other hand, the requirement of law
is that the environmental clearance must be obtained
beforehand. He submits that the Punjab & Haryana High Court
did not have the benefit of MoEF O.M. dated 7.10.2014, which
makes the position amply clear about the stage of obtaining
environmental clearance. He had relied on paragraph 100 of
Karnataka Industrial Areas Development Board (supra) and
also the High Court decision in (supra). He also
M. Velu
contended that the subject section of the Project has not been
44 2020 SCCOnline SC 328
43
sanctioned by the competent authority, as required in terms of
the NHAI Manual. He submits that the change of section is
without any tangible basis and is not supported by data required
for justifying such change. The change is brought about contrary
to the guidelines issued by the MoRTH. In substance, the
argument is that the change has been effected hastily and
without application of mind, as has been justly concluded by the
High Court. He submits that no interference with the High Court
decision is warranted.
22. The next in line to argue was Ms. Anita Shenoy, learned
senior counsel. She espouses the cause of the land
owners/aggrieved persons. She has supported the conclusion
reached by the High Court and also adopted the submissions
made by learned counsel preceding her. She has commended to
us that environmental clearances must precede the
commencement of acquisition process. That is because the EIA
process involves steps such as details of alternative sites
examined, status of clearances, details of forest land and the
physical changes to topography, land use, change in water bodies
because of construction and operation of the project, etc. Public
44
consultation also highlights the impact of the project on the
people in the area and on the environment. Only on the basis of
such empirical data, an informed decision can be taken for grant
of environmental clearance. This process ought not to be viewed
as any impediment in the project, such as construction of
national highways, but as a tool for taking just and appropriate
decision including to uphold the doctrines of “public trust”,
“precautionary principle” and “sustainable development”. That is
the requirement also under the notification of 2006 and MoEF
O.M. dated 7.10.2014. Reliance has been placed by her on
45
to highlight
Hanuman Laxman Aroskar vs. Union of India
the significance of notification, 2006. She has also placed
reliance on the exposition in Kamal Nath (supra) to submit that
the Courts are free to examine whether the project fulfils the
requirements of good faith, for the public good and in public
interest and does not encroach upon the natural resources and
convert them into private ownership. According to her,
notifications under Section 3A have been justly quashed at the
threshold stage itself because of serious errors in the decision
making process, which had vitiated the entire process and not
45 (2019) 15 SCC 401
45
merely because of lack of prior environmental clearance. She
also highlighted the circumstances emanating from the record,
which according to her, clearly go to show that the change of
section was a hasty decision and not backed by any
study/enquiries which ordinarily ought to precede such
declaration. In that, the project stretches under the original
Project (Bharatmala Pariyojna – Phase I) had been identified after
a thorough and scientific exercise, carried out on the basis of
detailed origindestination studies, freight flow projections and
verification of the identified infrastructure gaps through geo
mapping, using data from Bhaskaracharya Institute for Space
Applications and GeoInformatics (BISAG), as well as from other
sources, and also integration of economic corridors with ongoing
projects under the NHDP and infrastructure asymmetry in major
corridors. For changing such a wellinformed decision, very
strong evidence ought to have been produced by the authority
deciding to change the same in the short span (i.e. 24.10.2017,
when the Cabinet had approved the Phase I of the original Project
consisting of section CM (EC); and the decision of MoRTH dated
19.1.2018 concerning CKS (NC) section). Not even DPR was
placed before the MoRTH when such decision regarding change
46
was taken on 19.1.2018. Further, approval accorded by the
Cabinet/CCEA for the changed section of the Project, valued at
more than Rs.500 crores was not forthcoming. In fact, the
Central Government did not file any counter affidavit to justify
why the change was adopted in the meeting dated 19.1.2018. It
merely relied upon the counter affidavit of NHAI wherein it is
asserted that it was a policy decision. The learned counsel also
commented upon the manner in which the Consultant appointed
for the earlier section of the Project was continued for the
changed section without following necessary fresh tendering
procedure. She then commented about the DPR submitted by
the Consultant consisting of inaccurate and plagiarised contents.
She submitted that good quality roads are essential for
development of the area and all concerned, but there are already
three existing highways between ChennaiSalem. Resultantly,
the new section/project passing through the fertile agricultural
land between ChennaiSalem was bound to impact the
environment and also the livelihood of the land owners/farmers
without any tangible advantage or gains accruing to them.
Judicial review of such a decision was imperative and has been
rightly struck down by the High Court.
47
23. The next learned counsel espousing the cause of land
owner(s)/aggrieved person(s) is Mr. Kabilan Manoharan. He had
appeared in the crossappeal filed to challenge the opinion of the
High Court rejecting assail to the notifications issued under
Section 2(2) of the 1956 Act, declaring NH179A and NH179B
traversing through nonexistent roads and on open greenfield
lands. He would contend that the High Court failed to
comprehend the core aspects agitated by the writ petitioners. He
has articulated the ground as follows:
st
“….. That, the Petitioner had sought to Quash the 1
Respondent MoRTH’s Sec. 2(2) Declaration dated 0103
2018 under the National Highways Act, 1956 on the
GROUND that it was issued without an enabling provision
of law, as Sec. 2(2) of the National Highways Act, 1956 only
enables an existing Highway to be declared as a National
Highway and thus the G.O. was issued in “Arbitrariness”
and in violation of Art. 14 of the Constitution and which is
ultra vires the Constitution derived Legislative Powers of the
Union (w.r.t. Roads under Entry 23 of the Union List in the
VII Schedule under Art. 246 seen in contract with Entry 13
of the State List) and also ultra vires the Constitution derived
Executive Powers of the Union (w.r.t. Roads under Art. 257).”
And again:
“(10) That, the Petitioner will now go on with submissions to
demonstrate how the Policy Decision of the Respondents will
be subject to Judicial Review given the evident facts that the
Sec. 2(2) Declaration of new National Highway NH179B over
Nonexistent road and on plain land, that which is a
Decision/Declaration in furtherance of the Policy Decision to
implement the ChennaiSalem Expressway Project, is in fact
A. Issued in violation of Constitutional Provisions
relating to Legislative Powers of the Union w.r.t.
48
Roads as seen from Entry 23 of the Union List in
the VII Schedule under Art. 246 seen in contracts
with Entry 13 of the State List
B. Issued in violation of Constitutional Provisions
relating to Executive Powers of the Union w.r.t.
Roads as seen from Art. 257
C. Issued in violation of Statutory Provisions (i.e. Sec.
2(2) of National Highways Act, 1956)
st
D. Issued by the Delagatee (1 Respondent MoRTH) in
an Act beyond the delegated powers (without all
required PIB approval, PPPAC Approval, CCEA
Clearance that was mandated)
E. Issued in violation of a larger Policy (Bharatmala
Pariyojna Phase – I; “BharatmalaI”)
F. Issued without any demonstrable Public Purpose as
evident from the instances of Nonapplication of
mind over available data on
(i) Characteristics of the project
(ii) Traffic Analysis
(iii) Study of Alternatives
(iv) Economic Analysis
(v) Financial Analysis
(vi) Sensitivity Analysis
(vii) Burden to Exchequer
(viii) Benefits to existing Tollway
Concessionaires
(ix) Development tied to new Roads
(x) Carbon Footprint reduction from cheaper
ways”
These salient points have been elaborated in the written
submissions drawn by Mr. Kabilan Manoharan, learned counsel
assisted by Mr. P. Soma Sundaram, AdvocateonRecord. In his
submission, this Court should be slow in interfering with the
conclusion recorded by the High Court in reference to
notifications under Section 3A of the 1956 Act. Learned counsel
49
though has supported the conclusion reached by the High Court,
yet assailed the adverse findings and conclusion in reference to
the impugned notifications under Section 2(2) of the 1956 Act.
According to him, the challenge to the stated notifications had
been answered without reference to the points specifically raised
by the writ petitioners. The same were only adverted to in
paragraph 43 of the impugned judgment while dealing with point
No. (ii). He would submit that the High Court ought to have set
aside the notifications issued under Section 2(2) of the 1956 Act
declaring new national highways, namely, NH179A and NH179
B, as they would traverse through nonexistent roads and on
greenfield lands, being without authority of law. Therefore, the
entire process was null and void. Learned counsel has relied
upon the decisions of this Court in Col. A.S. Sangwan (supra),
(supra),
Dwarkadas Marfatia & Sons Synthetics and
46
Chemicals Ltd. & Ors. vs. State of U.P. & Ors. and Cipla
(supra).
Ltd.
24.
Two more written submissions have been filed by the
learned counsel espousing the cause of land owners/aggrieved
46 (1990) 1 SCC 109 (paragraph 54)
50
persons, namely, by learned counsel Mr. T.V.S. Raghavendra
Sreyas and Mr. S. Thananjayan. More or less, same points have
been urged in their respective written submissions. Even
according to them, considering the availability of three existing
routes between ChennaiSalem and which have not achieved the
maximum traffic, there was no need for a new project in the garb
of connecting industries along the ChennaiSalem route. In that,
there are no existing, approved or proposed industrial
zones/SEZs along this route as per Government data. Further,
the change recorded in the minutes of the meeting dated
19.1.2018 is not supported by any survey reports or documents
containing empirical data to justify new national highway. The
Consultant, who was appointed for the original Project
concerning CM (EC) section, presented alignments for the
changed section i.e. CKS (NC) in the meeting held on 19.2.2018
even though the intimation regarding change of scope of the
Project was made known on 22.2.2018. As the decision was
taken on the basis of the DPR prepared by the Consultant on the
basis of incorrect facts mechanically copied from other reports
and which was made the base document for consideration by the
MoEF for issuance of Terms of Reference, the entire EIA process
51
was vitiated. They have adopted the reasons and findings
recorded by the High Court for quashing of the notifications
under Section 3A(1) of the 1956 Act and pray for dismissal of the
appeals preferred by the NHAI and the Union of India.
25.
We have heard learned counsel for the parties and have also
considered the relevant pleadings and documents including
written submissions filed by the learned counsel appearing for
the concerned parties.
LEGISLATIVE COMPETENCE OF THE UNION
26.
The threshold issue, we propose to answer at the outset is
about the legislative competence of the Parliament to enact a law
for declaring open greenfield lands as national highway.
Notably, no declaration was sought by the writ petitioners in
reference to the provisions of the 1956 Act, the 1988 Act and in
particular, Section 2 of the 1956 Act, to be ultra vires as such.
The argument is that since only the State legislature is competent
to make a law for construction of new roads traversing through
the open greenfields, where no road exists and only in case of an
existing road/highway, would the Central Government have
52
power to declare it as a national highway. To buttress this
submission, reliance is placed on Entry 13 of List II (State List) of
the Seventh Schedule dealing with the subject on which the State
legislature has exclusive power to make a law, namely:
“13. Communications, that is to say, roads, bridges,
ferries, and other means of communication not specified
in List I; municipal tramways; ropeways; inland
waterways and traffic thereon subject to the provisions of
List I and List III with regard to such waterways; vehicles
other than mechanically propelled vehicles.”
In contradistinction, Entry 23 of List I of the Seventh Schedule in
respect of which the Parliament has exclusive power to make law,
is “highways declared by or under law made by Parliament to be
national highways”. It is, therefore, urged that the Central
Government had no power to invoke Section 2(2) of the 1956 Act,
as it merely enables the Central Government to declare an
existing highway to be a national highway. Resultantly, the issue
of impugned notifications by the Central Government under
Section 2(2) of the 1956 Act declaring the section between CKS
(NC), traversing through nonexistent road/highway and through
open greenfields, is arbitrary exercise of power and violates
Article 14 of the Constitution. It is, therefore, the
ultra vires
Constitution. It is also ultra vires the Constitution derived
executive powers of the Union (w.r.t. “Roads” under Article 257).
53
27. As aforesaid, we shall first deal with the legislative power of
the Union. Is it limited to making law in exercise of powers
ascribable to Entry 23 of List I in respect of an existing highway
to be declared as a national highway, as is contended before us?
The legislative power of the Parliament can be traced to Article
246, which reads thus:
“
246. Subjectmatter of laws made by Parliament and
(1) Notwithstanding
by the Legislatures of States.
anything in clauses (2) and (3), Parliament has exclusive
power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule (in this
Constitution referred to as the “Union List”).
(2) Notwithstanding anything in clause (3), Parliament
and, subject to clause (1), the Legislature of any State
also, have power to make laws with respect to any of the
matters enumerated in List III in the Seventh Schedule (in
this Constitution referred to as the “Concurrent List”).
(3) Subject to clauses (1) and (2), the Legislature of any
State has exclusive power to make laws for such State or
any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule (in this
Constitution referred to as the ‘State List’).
(4) Parliament has power to make laws with respect to
any mater for any part of the territory of India not
included in a State notwithstanding that such matter is a
matter enumerated in the State List.”
Indisputably, law made by the Parliament in the present case is
the 1956 Act and the 1988 Act in reference to Entry 23 of List I of
the Seventh Schedule. If the stated law made by the Parliament
is ascribable to Entry 23 of List I of the Seventh Schedule, the
Parliament has the exclusive power to make law on that subject
54
and for matters connected therewith. The fact that Entry 13 of
List II bestows exclusive power upon the legislature of any State
concerning subject “roads”, cannot be the basis to give restricted
meaning to Entry 23 in List I, dealing with all matters concerning
“national highways”. It is wellestablished position that if the law
made by the Parliament is in respect of subject falling under
Union List, then the incidental encroachment by the law under
the State list, per se , would not render it invalid. The doctrine of
pith and substance is wellestablished in India. The doctrine is
invoked upon ascertaining the true character of the legislation. It
may be useful to advert to Article 248 of the Constitution,
bestowing legislative powers on the Parliament to make a law
with respect to any matter not enumerated in the Concurrent List
or the State List. Concededly, the expression “highways” as
such, is not mentioned either in the State List or the Concurrent
list. While making law on the subject falling under the Union
List in terms of Entry 97 thereof, it is open to the Parliament to
make law on any other matter not enumerated in List II or List III
including any tax not mentioned in either of those lists.
55
28. Indisputably, the entries in the legislative lists are not
sources of legislative powers, but are merely topics or fields in
respect of which concerned legislative body is free to make a law.
The entries must receive a liberal and expansive construction,
reckoning the wide spirit thereof and not in a narrow pedantic
sense. Entry 23 in List I refers generally to “highways” declared
or to be declared by the Parliament as national highways and all
matters connected therewith. This empowers the Parliament to
declare any stretch/section across any State as a highway for
being designated as a national highway. There is no indication in
the Constitution to limit the exercise of that power of the
Parliament only in respect of an existing “highway”. Further,
whenever and wherever the question of legislative competence is
raised, the test is whether the law enacted, examined as a whole,
is substantially with respect to the particular topic of legislation
falling under the concerned list. If the law made by the
Parliament or the legislature of any State has a substantial and
not merely a remote connection with the Entry under which it is
made, there is nothing to preclude the concerned legislature to
make law on all matters concerning the topic covered under the
Union List or the State List, as the case may be. Reliance has
56
been justly placed on the dictum of the Constitution Bench of
this Court in K.T. Plantation Pvt. Ltd. (supra), that the test is
identicalness or diversity between dominant intention of the two
legislations. Moreover, power of lawmaking itself would be
rendered otiose if it does not provide for suitable coverage of
matters that are incidental as well as intrinsically connected to
the expressly granted power. Further, Chapter II of Part XI of the
Constitution dealing with administrative relations between the
Union and the States makes it amply clear that the executive
power of every State shall be so exercised as to ensure
compliance with the laws made by Parliament and any existing
laws which applied in that State, and the executive power of the
Union shall extend to the giving of such directions to a State as
may appear to the Government of India to be necessary for that
purpose. Article 257 expounds about the control of the Union
over States in certain cases. The same reads thus:
“ 257. Control of the Union over States in certain
cases. (1) The executive power of every State shall be so
exercised as not to impede or prejudice the exercise of the
executive power of the Union, and the executive power of
the Union shall extend to the giving of such directions to
a State as may appear to the Government of India to be
necessary for that purpose.
(2) The executive power of the Union shall also extend
to the giving of directions to a State as to the construction
57
and maintenance of means of communication declared in
the direction to be of national or military importance.
Provided that nothing in this clause shall be taken
as restricting the power of Parliament to declare highways
or waterways to be national highways or national
waterways or power of the Union with respect to the
highways or waterways so declared or the power of the
Union to construct and maintain means of
communication as part of its functions with respect to
naval, military and air force works.
(3) The executive power of the Union shall also extend
to the giving of directions to a State as to the measures to
be taken for the protection of the railways within the
State.
(4) Where in carrying out any direction given to a State
under clause (2) as to the construction or maintenance of
any means of communication or under clause (3) as to the
measures to be taken for the protection of any railway,
costs have been incurred in excess of those which would
have been incurred in the discharge of the normal duties
of the State if such direction had not been given, there
shall be paid by the Government of India to the State
such sum as may be agreed, or, in default of agreement,
as may be determined by an arbitrator appointed by the
Chief Justice of India, in respect of the extra costs so
incurred by the State.”
Clause (2) predicates that the executive power of the Union shall
also extend to the giving of directions to a State as to the
construction and maintenance of means of communication
declared in the direction to be of national and military
importance. The proviso makes it further clear that the power of
the Parliament is not restricted in any way to the matters
specified therein. The sevenJudge Constitution Bench in
(supra) had observed that
Synthetics and Chemicals Ltd.
constitutional provisions specifically dealing with delimitation of
58
powers in a federal polity must be understood in a broad
commonsense point of view, as understood by common people
for whom the Constitution is made.
Suffice it to observe that there is nothing in the Constitution
29.
which constricts the power of the Parliament to make a law for
declaring any stretch/section within the State not being a road or
an existing highway, to be a national highway. Whereas, the
provisions in the Constitution unambiguously indicate that the
legislative as well as executive power regarding all matters
concerning and connected with a highway to be designated as a
national highway, vests in the Parliament and the laws to be
made by it in that regard. For the same reason, the complete
executive power also vests within the Union.
30. The seminal question is whether the 1956 Act is a law
ascribable to Entry 23 of the Union List and it provides for
construction of a national highway on a nonexisting
road/highway traversing through greenfield lands. It may be
useful to advert to the Statement of Objects and Reasons for
enacting the 1956 Act. The same reads thus:
“ Statement of Objects and Reasons
59
1. Under an agreement entered into with the then
existing Provinces, the Government of India provisionally
st
accepted entire financial liability, with effect from the 1
April, 1947, for the construction, development and
maintenance of certain highways in the Provinces which
were considered suitable for inclusion in a system of
national highways. Upon the creation of the Part B States
and the new Part C States under the Constitution, the
National Highways scheme was extended to those States
also.
2. Under entry 23 of the Union List. Parliament has
exclusive power of legislation with respect to
highways which are declared to be national highways
. It is, therefore,
by or under law made by Parliament
proposed that the highways comprised in the Schedule
annexed to this Bill should be declared to be national
highways. Such a declaration would help the Central
Government in exercising its powers with respect to
the development and maintenance of these highways
more effectively. Power is also sought to be vested in
the Central Government to declare by notification
other highways to be national highways . Power should
also be given to the Central Government to enter into
agreements with the State Governments or municipal
authorities with respect to the development or
maintenance of any portion of any national highway and
fees may have to be levied in respect of certain types of
services rendered on national highways.
3. The present Bill is designed to achieve the objects
set forth above.”
(emphasis supplied)
In the present case, we have to consider the sweep of the 1956
Act in light of the amended provisions, which came into force
with effect from 24.1.1997. The 1956 Act extends to the whole of
India and has come into force on 15.4.1957. Section 2(1) thereof
is in the nature of declaration by the Parliament that each of the
highways specified in the schedule appended to the 1956 Act to
60
be a national highway. The Schedule appended in the end gives
the description of such highways. SubSection (2) of Section 2,
however, empowers the Central Government to declare “any other
highway” to be a national highway by publishing a notification in
the Official Gazette in that behalf and upon such publication, the
highway shall be deemed to be specified in the stated Schedule.
This provision contains a legal fiction.
31. This provision annunciates that the Parliament has
entrusted the power in the Central Government or the Union to
declare from time to time and when required, any other
stretch/section in any State to be a national highway, which
power could be exercised exclusively by the Parliament itself
under the Constitution. SubSection (3) of Section 2 empowers
the Central Government to omit any highway from the Schedule
and upon such publication, it would cease to be a national
highway. In other words, Section 2, as enacted by the
Parliament, declared the highways referred to in the Schedule to
be national highways and empowered the Central Government to
add other highways to be a national highway and including omit
the scheduled highways from time to time as per the evolving
61
exigencies and administrative concerns. There is nothing in this
Act to constrict the power of the Central Government to notify
any stretch/section (not being an existing road/highway) within
any State, to be a national highway.
A priori , the Central Government is free to construct/build a
32.
new national highway keeping in mind the obligations it has to
discharge under Part IV of the Constitution for securing a social
order and promotion of welfare of the people in the concerned
region, to provide them adequate means of livelihood, distribute
material resources as best to subserve the common good, create
new opportunities, so as to empower the people of that area
including provisioning new economic opportunities in the area
through which the national highway would pass and the
country’s economy as a whole. The availability of a highway in
any part of the State paves way for sustainable development and
for overall enhancement of human wellbeing including to
facilitate the habitants thereat to enjoy a decent quality of life,
creation of assets (due to natural increase in market value of
their properties) and to fulfil their aspirations of good life by
provisioning access to newer and presentday opportunities.
62
33. Sections 3A to 3J of the Act expound the procedure for
acquisition of the land for the purpose of building a national
highway. The same are set out hereunder:
3A. Power to acquire land, etc. —(1) Where the Central
Government is satisfied that for a public purpose any land is
required for the building, maintenance, management or
operation of a national highway or part thereof, it may, by
notification in the Official Gazette, declare its intention to
acquire such land.
(2) Every notification under subsection (1) shall give a brief
description of the land.
(3) The competent authority shall cause the substance of the
notification to be published in two local newspapers, one of
which will be in a vernacular language.
3B. Power to enter for survey, etc. —On the issue of a
notification under subsection (1) of section 3A, it shall be
lawful for any person, authorised by the Central Government
in this behalf, to—
(a) make any inspection, survey,
measurement, valuation or enquiry;
(b) take levels;
(c) dig or bore into subsoil;
(d) set out boundaries and intended lines of
work;
(e) mark such levels, boundaries and lines
placing marks and cutting trenches; or
(f) do such other acts or things as may be laid
down by rules made in this behalf by that
Government.
3C. Hearing of objections. —(1) Any person interested in the
land may, within twentyone days from the date of
publication of the notification under subsection (1) of
section 3A, object to the use of the land for the purpose or
purposes mentioned in that subsection.
(2) Every objection under subsection (1) shall be made to
the competent authority in writing and shall set out the
grounds thereof and the competent authority shall give the
objector an opportunity of being heard, either in person or
by a legal practitioner, and may, after hearing all such
objections and after making such further enquiry, if any, as
63
the competent authority thinks necessary, by order, either
allow or disallow the objections.
Explanation.—For the purposes of this subsection, “legal
practitioner” has the same meaning as in clause (i) of sub
section (1) of section 2 of the Advocates Act, 1961 (25 of
1961).
(3) Any order made by the competent authority under sub
section (2) shall be final.
—(1) Where no objection
3D. Declaration of acquisition.
under subsection (1) of section 3C has been made to the
competent authority within the period specified therein or
where the competent authority has disallowed the objection
under subsection (2) of that section, the competent authority
shall, as soon as may be, submit a report accordingly to the
Central Government and on receipt of such report, the
Central Government shall declare, by notification in the
Official Gazette, that the land should be acquired for the
purpose or purposes mentioned in subsection (1) of section
3A.
(2) On the publication of the declaration under subsection
(1), the land shall vest absolutely in the Central Government
free from all encumbrances.
(3) Where in respect of any land, a notification has been
published under subsection (1) of section 3A for its
acquisition but no declaration under subsection (1) has
been published within a period of one year from the date of
publication of that notification, the said notification shall
cease to have any effect:
Provided that in computing the said period of one year, the
period or periods during which any action or proceedings to
be taken in pursuance of the notification issued under sub
section (1) of section 3A is stayed by an order of a court shall
be excluded.
(4) A declaration made by the Central Government under
subsection (1) shall not be called in question in any court or
by any other authority.
—(1) Where any land has
3E. Power to take possession.
vested in the Central Government under subsection (2) of
section 3D, and the amount determined by the competent
authority under section 3G with respect to such land has
been deposited under subsection (1) of section 3H, with the
competent authority by the Central Government, the
competent authority may by notice in writing direct the
owner as well as any other person who may be in possession
64
of such land to surrender or deliver possession thereof to the
competent authority or any person duly authorised by it in
this behalf within sixty days of the service of the notice.
(2) If any person refuses or fails to comply with any direction
made under subsection (1), the competent authority shall
apply—
(a) in the case of any land situated in any area
falling within the metropolitan area, to the
Commissioner of Police;
(b) in case of any land situated in any area
other than the area referred to in clause (a), to
the Collector of a District,
and such Commissioner or Collector, as the case may be,
shall enforce the surrender of the land, to the competent
authority or to the person duly authorised by it.
3F. Right to enter into the land where land has vested in
the Central Government. —Where the land has vested in
the Central Government under section 3D, it shall be lawful
for any person authorised by the Central Government in this
behalf, to enter and do other act necessary upon the land for
carrying out the building, maintenance, management or
operation of a national highway or a part thereof, or any
other work connected therewith.
3G. Determination of amount payable as compensation.
—(1) Where any land is acquired under this Act, there shall
be paid an amount which shall be determined by an order of
the competent authority.
(2) Where the right of user or any right in the nature of an
easement on, any land is acquired under this Act, there shall
be paid an amount to the owner and any other person whose
right of enjoyment in that land has been affected in any
manner whatsoever by reason of such acquisition an amount
calculated at ten per cent, of the amount determined under
subsection (1), for that land.
(3) Before proceeding to determine the amount under sub
section (1) or subsection (2), the competent authority shall
give a public notice published in two local newspapers, one
of which will be in a vernacular language inviting claims
from all persons interested in the land to be acquired.
(4) Such notice shall state the particulars of the land and
shall require all persons interested in such land to appear in
person or by an agent or by a legal practitioner referred to in
subsection (2) of section 3C, before the competent authority,
65
at a time and place and to state the nature of their respective
interest in such land.
(5) If the amount determined by the competent authority
under subsection (1) or subsection (2) is not acceptable to
either of the parties, the amount shall, on an application by
either of the parties, be determined by the arbitrator to be
appointed by the Central Government.
(6) Subject to the provisions of this Act, the provisions of the
Arbitration and Conciliation Act, 1996 (26 of 1996) shall
apply to every arbitration under this Act.
(7) The competent authority or the arbitrator while
determining the amount under subsection (1) or subsection
(5), as the case may be, shall take into consideration—
(a) the market value of the land on the date of
publication of the notification under section 3A;
(b) the damage, if any, sustained by the person
interested at the time of taking possession of the
land, by reason of the severing of such land from
other land;
(c) the damage, if any, sustained by the person
interested at the time of taking possession of the
land, by reason of the acquisition injuriously
affecting his other immovable property in any
manner, or his earnings;
(d) if, in consequences of the acquisition of the
land, the person interested is compelled to
change his residence or place of business, the
reasonable expenses, if any, incidental to such
change.
3H. Deposit and payment of amount. —(1) The amount
determined under section 3G shall be deposited by the
Central Government in such manner as may be laid down by
rules made in this behalf by that Government, with the
competent authority before taking possession of the land.
(2) As soon as may be after the amount has been deposited
under subsection (1), the competent authority shall on
behalf of the Central Government pay the amount to the
person or persons entitled thereto.
(3) Where several persons claim to be interested in the
amount deposited under subsection (1), the competent
authority shall determine the persons who in its opinion are
entitled to receive the amount payable to each of them.
66
(4) If any dispute arises as to the apportionment of the
amount or any part thereof or to any person to whom the
same or any part thereof is payable, the competent authority
shall refer the dispute to the decision of the principal civil
court of original jurisdiction within the limits of whose
jurisdiction the land is situated.
(5) Where the amount determined under section 3G by the
arbitrator is in excess of the amount determined by the
competent authority, the arbitrator may award interest at
nine per cent, per annum on such excess amount from the
date of taking possession under section 3D till the date of
the actual deposit thereof.
(6)Where the amount determined by the arbitrator is in
excess of the amount determined by the competent
authority, the excess amount together with interest, if any,
awarded under subsection (5) shall be deposited by the
Central Government in such manner as may be laid down by
rules made in this behalf by that Government, with the
competent authority and the provisions of subsections (2) to
(4) shall apply to such deposit.
3I. Competent authority to have certain powers of civil
court. —The competent authority shall have, for the
purposes of this Act, all the powers of a civil court while
trying a suit under the Code of Civil Procedure, 1908 (5 of
1908), in respect of the following matters, namely:—
(a) summoning and enforcing the attendance
of any person and examining him on oath;
(b) requiring the discovery and production of
any document;
(c) reception of evidence on affidavits;
(d) requisitioning any public record from any
court or office;
(e) issuing commission for examination of
witnesses.
3J. Land Acquisition Act 1 of 1894 not to apply. —
Nothing in the Land Acquisition Act, 1894 shall apply to an
acquisition under this Act.”
34. Section 3A of the 1956 Act inserted by way of an
amendment in 1997, empowers the Central Government to
declare its intention to acquire “any land”. It need not be linked
67
to an existing road or State highway. For, the expression “any
land” ought to include open greenfields for construction or
building of a national highway, consequent to declaration under
Section 2(2) of the same Act in that regard. The central condition
for exercise of such power by the Central Government is that it
should be satisfied that such land is required for the public
purpose of building a national highway or part thereof. Section
3B of the 1956 Act empowers the person authorised by the
Central Government to enter upon the notified lands for the
limited purpose of survey etc., to ascertain its suitability for
acquisition for the stated purpose or otherwise. The final
declaration of acquisition is then issued under Section 3D of the
Act after providing opportunity to all persons interested in the
notified land to submit their objections and participate in a
public hearing under Section 3C. The contour of issues debated
during this public hearing are in reference to matters relevant for
recording satisfaction as to whether the notified land is or is not
required for a public purpose for building, maintenance,
management or operation of a national highway or part thereof.
Be it noted that consequent to publication of declaration under
Section 3D, the land referred to in the notification vests
68
absolutely in the Central Government, free from all
encumbrances. Possession of such land is then taken under
Section 3E of the Act, upon depositing the compensation amount
in the manner provided in Section 3H of the Act and as
determined under Section 3G. Section 3F empowers the Central
Government to enter upon the land after the same is vested in
terms of Section 3D of the Act. Notably, Section 3J of the Act is a
nonobstante provision and it predicates that nothing in the Land
Acquisition Act, 1894 shall apply to an acquisition under the
1956 Act. The national highways vest in the Union in terms of
Section 4 of the 1956 Act and the responsibility for development
and maintenance thereof is primarily that of the Central
Government in terms of Section 5. The Central Government is
competent to issue directions to the Government of any State in
respect of matters specified in Section 6 of the Act. Section 9
empowers the Central Government to make rules in respect of
matters provided therein for carrying out the purposes of the
1956 Act.
35. It is not necessary to dilate on the other provisions of the
1956 Act for the time being. As aforesaid, Sections 3A to 3J have
69
been inserted by way of amendment of 1997. On close
examination, the 1956 Act, as amended and applicable to the
present case, is an Act to authorise Central Government to
declare the notified stretches/sections in the State concerned as
a highway to be a national highway; and for matters connected
therewith including acquisition of “any land” for building or
construction of a new highway (which need not be an existing
road/highway). The substance of this Act is ascribable to Entry
23 of the Union List and matters connected therewith.
36. Having said thus, we have no hesitation in concluding that
the challenge to the notifications issued under Section 2(2) of the
1956 Act on the argument of lack of legislative competence, is
devoid of merits. The High Court justly negatived the same and
we uphold that conclusion.
EXECUTIVE POWERS OF THE UNION
even the challenge to the stated notifications on
37. A fortiori,
the ground of being ultra vires the Constitution derived executive
powers of the Union, must fail. That challenge is founded on the
purport of Article 257, which has been reproduced above. It is
70
urged that Article 257 pointedly refers to the sphere of executive
powers of the Union. Article 257 of the Constitution, as
aforesaid, deals with administrative relations between the States
and the Union. In the first place, having said that the Parliament
has exclusive legislative competence to make a law in respect of
national highways and all matters connected therewith, which
includes declaring any stretch/section within the State (not being
existing roads/highways) as a national highway, it must follow
that the Central Government alone has the executive powers to
construct/build a new national highway in any State and to issue
directions to the Government of any State for carrying out the
purposes of the 1956 Act. It is incomprehensible as to how the
argument of lack of executive power of the Central Government
despite such a law, can be countenanced. Concededly, the
validity of Section 2 of the 1956 Act, which empowers the Central
Government to notify any other highway (other than the
scheduled national highways) as a national highway, has not
been put in issue. No declaration is sought that the said
provision is ultra vires the Constitution or the law. Therefore, the
argument essentially requires us to examine the question as to
whether Section 2(2) of the 1956 Act enables the Central
Government to declare a national highway in respect of a non
71
existing road(s)/highway(s) and on open greenfields land within
the State. Suffice it to observe that the challenge to notifications
issued by the Central Government under Section 2(2) of the 1956
Act on the ground of being ultra vires the Constitution derived
executive powers, is also devoid of merits.
SCOPE OF SECTION 2(2)
38. We may revert to the argument that the Central
Government, even if is competent to declare any stretch/section
as a national highway, can do so only in respect of an existing
road/highway within the State and not in respect of nonexistent
road, much less traversing through the open greenfield lands.
Somewhat similar question was dealt with by the same High
Court (Madras High Court) in reference to the provisions of the
Tamil Nadu Highways Act, 2001 in Jayaraman (supra).
However, we are called upon to examine the question under
consideration in reference to the 1956 Act and the 1988 Act.
Hence, we proceed to examine Section 2 of the 1956 Act, which
reads thus:
“ 2. Declaration of certain highways to be national
(1) Each of the highways specified in the
highways.
Schedule is hereby declared to be a national highway.
72
(2) The Central Government may, by notification in the
Official Gazette, declare any other highway to be a
national highway and on the publication of such
notification such highway shall be deemed to be specified
in the Schedule.
(3) The Central Government may, by like notification,
omit any highway from the Schedule and on the
publication of such notification, the highway so omitted
shall cease to be a national highway.”
We have briefly adverted to the scope of subSection (1), which is
in the nature of declaration by the Parliament that each of the
highways specified in the Schedule appended to the 1956 Act
shall be a national highway. For building a new highway, as in
the present case, between stretch/section CKS (NC) NH179A
and NH179B respectively, the Central Government can do so in
exercise of power conferred upon it under Section 2(2) of the
1956 Act. That empowers the Central Government to notify any
other highway (not forming part of the Schedule appended to the
Act) as a national highway and upon such publication of
notification in the official gazette, the said highway is deemed to
be specified in the Schedule as a national highway. This power is
not constricted or circumscribed by any other inhibition, such as
to declare only an existing road or highway within the State as a
national highway. The requirement of a national highway within
the country as a whole and Statewise, in particular, is to
alleviate evolving socioeconomic dynamics, for which such a
73
wide power has been bestowed upon the Central Government.
The Central Government is obliged to do so to facilitate it to
discharge its obligations under Part IV of the Constitution. There
is nothing in the Constitution of India or for that matter, the
1956 Act to limit that power of the Central Government only in
respect of existing roads/highways within the State. To say so
would be counterproductive and would entail in a piquant
situation that the Central Government cannot effectively
discharge its obligations under Part IV of the Constitution unto
the remote inaccessible parts of the country until the concerned
State Government constructs a road/highway within the State.
On the other hand, if the concerned State, due to reasons beyond
its control or otherwise, is unable/flounder to provision a
road/highway in a given segment of the State; despite being
imperative to do so to assuage the perennial difficulties faced by
the locals in that belt due to lack of access, the Central
Government may come forward and step in to construct a
national highway and connect the area with the other parts of the
country. By its very nomenclature, a national highway is to link
the entire country and provide access to all in every remote
corner of the country for interaction and to promote commerce
and trade, employment and education including health related
74
services. This approach would enhance and further the federal
structure. This is because, the existence of a national highway in
the neighbourhood paves way for the fulfilment of aspirations of
the locals and their empowerment. It not only brings with it
opportunity to travel across, but also propels the economy of that
region and the country as a whole. It gives impetus to myriads of
social, commerce and more importantly, access to other
activities/facilities essential for the health, education and general
wellbeing of the locals, in particular.
39. The expression “highway” has not been defined in the 1956
Act or even in the 1988 Act. Dictionary meaning of the term
“highway” as per Venkataramaiya’s Law Lexicon (Second Edition)
is as follows:
“ Highway. A highway is the physical track along which a
vehicle travels. [See Kelani Valley Motor Transit Co. Ltd.
v.
Colombo, etc. Ltd. , A.I.R. 1946 P.C. 137. Public roads, which
every subject of the kingdom has right to use. Wharton’s Law
Lexicon.] The common definition of highway which is given
in all the textbooks of authority is that it is a way leading
from one market town or inhabited place to another
inhabited place, which is common to all the Queen’s subjects
( per Coleridge, C.J. Bailey v. Jamieson , 34 L.T. 62) but if the
dedication to the public is clear, a thoroughfare is not
essential to a highway, e.g. cul desac may be a highway. –
Rugby Trustees v. Merryweathers , 103 E. R. 109.
The common definition of a “highway” is that it is a
way leading from one marked town or inhabited place to
another inhabited place, and which is common to all the
75
subjects of the sovereign. Public bridges are highways so far
as the right of passage is concerned. [ Halsbury’s Laws of
England , Vol. 16, para. 1] A bridge is not the private property
of an individual, but is the property of the State, and is a
public bridge. – K.K. Wadhwani, Mrs. V. State of Rajasthan ,
I.L.R. (1967) Raj. 850 at p. 852 : A.I.R. 1958 Raj. 138.
The right of the public in a highway is merely to pass
and repass. Such right can be restricted at the time of the
dedication and whether the right is restricted or not is
generally established by the nature of the user. The
presumption generally is that the dedication is for the
ordinary and reasonable user of the road as a highway. It is
well settled that the question of the kind of traffic for which a
highway is dedicated is a question of fact and it has to be
answered having regard to the character of the way and the
nature of the user. It is also settled that a right of passage
once acquired will extend to “more modern forms of traffic
reasonably similar to those for which the highway was
originally dedicated, so long as they do not impose a
substantially greater burden on the owner of the soil, nor
substantially inconvenience persons exercising the right of
passage in the manner originally contemplated”.
The right of the public is a right to “pass along” a
highway for the purpose of legitimate travel not to be on it
except so far as their presence is attributable to a reasonable
and proper user of the highway as such. A person who is
found using the highway for other purposes must be
presumed to have gone there for such purposes and not with
a legitimate object and as against the owner of the soil he is
to be treated as a trespasser – Moti Lal v. Uttar Pradesh
Government , A.I.R. 1951 All. 257 at p.267.
In order to constitute a valid dedication to the public
of a highway by the owner of the soil, it is clearly settled that
there must be an intention to dedicate – there must be an
animus dedicandi ; of which the user by the public is
evidence, and no more ; and a single act of interruption by
the owner is of much more right, upon a question of
intention, than many acts of enjoyment.
There may be a dedication to the public for a limited
purpose ; as for a bootway, houseway or driftway ; but
there cannot be a dedication to a limited part of the public.
Muhammad Rustam Ali Khan v. Municipal Committee of
Karnal City , 38 M.L.J. 455 at p.460.
The normal use of the word “highway” includes “road”,
particularly when the reference is to places where “there is a
76
public right of travel”. – R. ex rel. Johnson v. Johansen ,
(1962) 38 W.W.R. 381, per manning, J. at p. 383; Words and
nd
Phrases Legally Defined , 2 Ed., Vol. II, p. 360.”
The meaning of expression “highway”, as expounded in the
40.
th
P. Ramanatha Aiyar’s Advanced Law Lexicon (6 Edition) reads
thus:
“ Means a National Highway declared as such
Highway.
under section 2 of the National Highways Act, 1956 and
includes any Expressway or Express Highway vested in
the Central Government, whether surfaced or unsurfaced,
and also includes
(i) all lands appurtenant to the Highway,
whether demarcated or not, acquired for the
purpose of the Highway or transferred for such
purpose by the State Government to the Central
Government;
(ii) all bridges, culverts, tunnels, causeways,
carriageways and other structures constructed on
or across such Highway; and
(iii) all trees, railings, fences, posts, signs,
signals, kilometre stone and other Highway
accessories and materials on such Highways.
[Control of National Highways and Land Traffic Act,
2002 (13 of 2003), section 2(e)]”
The expression “national highway” has been defined in the same
Law Lexicon as follows:
“ National Highway. National highway is invariably a
metalled road and it could be a road within the meaning
of section 2(6) of the Act if it is maintained by the State
Government. Bhulli v. State, MLJ : QD (19611965) Vol V
C1769 : 1964 All WR (HC) 512 : 1964 All Cr R 379 [U.P.
Road Side Land Control Act (10 of 1965), section 2(6)]
“NATIONAL HIGHWAYS” means the highways specified in
the Schedule to the National Highways Act, 1956 or any
other highway declared as national highway under sub
section (2) of Section 2 of the said Act. [Motor Vehicles
(Driving) Regulations, 2017, Regn.2(1)(i)]”
77
41. The Central Government, whilst exercising power under
Section 2(2) of the 1956 Act creates a right in the locals of the
concerned area to pass and repass along a highway from one
marked town or inhabited place to another inhabited place for
the purpose of legitimate travel. Such highway is dedicated for
the ordinary and reasonable user of the road as a national
highway from one designated town (Chennai) upto another town
(Salem), which will be common to all the subjects. As expounded
hitherto, the Central Government is fully competent to notify “any
land” (not necessarily an existing road/highway) for acquisition,
to construct a highway to be a national highway.
MODIFICATION OF PROJECT AND EXTENT/SCOPE OF
REVIEW
It was next contended that the decision to change the
42.
stretch/section to CKS (NC) was arbitrary and was not backed
by scientific study. The original Project (Bharatmala Pariyojna
Phase I) included section – CM (EC), as approved by the CCEA in
October, 2017. It is true that the Project (Bharamala Pariyojna
Phase I) was conceived after a scientific study as a
comprehensive project at the macro (national) level for 24,800
78
kms. in Phase I, spanning over a period of 5 years (201718 to
202122) at an estimated outlay of INR 5,35,000 crores with an
objective to improve the efficiency of freight and passenger
movement across the country by bridging critical infrastructure
gaps through effective interventions like development of
Economic Corridors, Inter Corridors and Feeder Routes (ICFR),
National Corridor Efficiency Improvement, Border and
International connectivity roads, Coastal and Port connectivity
roads and Greenfield expressways. This Project, being a macro
level project, does not reckon the nuanced imperatives of a
particular region or area, which may only be a miniature of the
whole Project traversing across around 24,800 kms. in Phase I.
For that reason, the approved Project itself bestows discretion
upon the MoRTH to substitute/replace up to 15% length of
24800 kms., of the Project (Phase I), by other suitable projects. It
is so provided in clause III, which reads thus:
“III. Minister RTH is authorized to substitute/replace
up to 15% length of 24,800 kms for Phase I of the
program by other suitable projects, if development of
certain identified stretches under the program cannot be
taken up on account of issues pertaining to alignment
finalization, land availability and other unforeseen factors.
MoRTH shall retain the same target and budget proposed
above.”
79
It could thus be understood that alteration to the extent of 15%
is permissible, if development of certain identified stretches
under the program cannot be taken up on account of issues
pertaining to alignment finalisation, land availability and other
unforeseen factors and concerns relating to congestion, reduction
of distance, operational efficiency are some of the factors which
may attract such alteration, as we shall see. In the meeting
convened on 19.1.2018, chaired by the Secretary, MoRTH for
examining the micro level implementation of the comprehensive
Project and keeping in mind the pressing requirements of the
concerned State, the Committee opted for
substitution/replacement of the original stretch/section [CM
(EC)] for the reasons recorded in the minutes. It decided to
change the section CM (EC) to CKS (NC) as regards State of
Tamil Nadu. It was a wellconsidered decision taken by the said
Committee set up under the aegis of the MoRTH. It must be
assumed that the broadbased committee of experts in the field,
was fully aware of the governing policies and criteria for
designating national highways. It was also cognizant of the
requirements and priorities of the concerned area and the norms
specified for prioritising the stretches/sections. In that, national
80
highways are regarded as arteries of the country’s economy. That
there is marked distinction and importance of being a National
Corridor, in preference to the Economic Corridor which is for
connection of economically important production and
consumption centres (44 identified) under the Project
(Bharatmala Pariyojna Phase I). Hence, it was unanimously
resolved by the Committee to opt for National Corridor for the
stretch/section ChennaiSalem inter alia because it would be the
shortest route with very minimal logistical issues in completion
thereof. That was also for efficiency improvement of existing
Economic Corridor [CM (EC)] and for decongestion of corridor
network with seamless connectivity with National corridor. Even
the Project (Bharatmala Pariyojna Phase I) focuses on enhanced
effectiveness of already built infrastructure, multimodal
integration, bridging infrastructure gaps for seamless movement
and integrating National and Economic Corridors. As per this
project, the Golden Quadrilateral and NSEW Corridors carrying
35% of India’s freight were to be declared National Corridors.
The criteria for selection of corridors has been spelt out
thereunder as follows:
81
“
I. Criteria for selection of corridors
Selection criteria for projects to be taken up under
Bharatmala PhaseI are to be as follows:
| Sl.<br>No. | Component of<br>Bharatmala Pariyojana | Interse priority determination<br>criteria for selection of stretches |
|---|
| 1. | Economic Corridor<br>Development | Economic corridor development<br>program focuses on developing new<br>corridors, in addition to existing<br>Golden Quadrilateral (GQ) and North<br>SouthEast West corridors (NSEW).<br>It is planned to develop these<br>corridors end to end to ensure<br>seamless and speedy travel and to<br>ensure uniformity in standards in<br>terms of speed, design of various<br>elements of roads, control of<br>accesses, way side amenities, road<br>safety features, etc. Once upgraded<br>it will ensure substantial increase in<br>speed and time of travel for both<br>freight and passenger traffic at large<br>across the country.<br>Criteria:<br> Stretches with higher freight<br>flow;<br> Stretches with overall higher<br>traffic;<br> Stretches with ease of Land<br>Acquisition and preconstruction<br>activities and DPR preparation;<br> Capacity augmentation from 4<br>to 6 lane would be taken in 2nd<br>phase. |
| 2. | Inter Corridor and<br>feeder roads<br>development | Stretches of roads connecting more<br>than 2 corridors are classified as<br>intercorridors routes, while other<br>routes connecting to 1 or 2<br>corridors are termed as feeder<br>routes.<br>Selection Criteria:<br> Stretches with less than 4 lane<br>infrastructure leading to<br>infrastructure asymmetry on<br>the corridor;<br> Higher traffic in terms of PCU; |
82
| | Stretches with ease of Land<br>Acquisition and pre<br>construction activities and<br>DPR preparation; |
|---|
| 3. | National Corridors<br>Efficiency Improvement | National Corridor Efficiency<br>Improvement program will focus on<br>improving the efficiency of the<br>existing corridors (GQ and NSEW),<br>by removing the congestion points<br>on the corridor to improve the<br>average speed on the corridor.<br>Interventions such as controlling<br>access on the corridor, uniform<br>corridor tolling, development of<br>bypasses, ring roads, fly overs at<br>choke points will be taken up to<br>improve the average speed on the<br>existing corridors in line with the<br>best in class corridors.<br>Criteria:<br> Congestion records;<br> Road safety consideration<br> Higher traffic would be prioritized;<br> Focus on Ring roads;<br>mobilization/acquisition of land<br>by State Governments;<br> Connectivity of Logistics Parks; |
| 4. | Border and<br>International<br>Connectivity roads | Criteria:<br>Synergy with development of<br>Integrated check post,<br>Government priority;<br>IMT/BIN/BIMSTEC MVAs<br>Stretches of ease of Land<br>Acquisition and preconstruction<br>activities and DPR preparation |
| 5. | Coastal and Port<br>connectivity roads | Criteria:<br> Development status of Ports;<br> Equity Participation by Stake<br>holders;<br> Synchronization with other port<br>development under Sagarmala;<br> Ease of Land Acquisition and<br>preconstruction activities and<br>DPR preparation; |
| 6. | Expressways | Criteria:<br> Constraint in capacity<br>augmentation of important NHs |
83
| | where PCU>50,000;<br> Nigher traffic would be<br>prioritized;<br> Synchronization with rapidly<br>growing Industrial Activities;<br> Stretches with ease of Land<br>Acquisition and preconstruction<br>activities and DPR preparation. |
|---|
emphasis supplied in italics)
(
43. Be that as it may, one of the reasons recorded in the
minutes is that instead of opting for expansion of the existing
stretch/section [CM (EC)], a crowflight greenfield alignment be
preferred and developed between Chennai and Salem via Harur
under National Corridor Efficiency Improvement, so as to reduce
the distance between Chennai and Salem/Coimbatore by 40
kms. and also diversify the traffic from the congested Chennai
Krishnagiri section of Golden Quadrilateral and Chennai
Ulundurpet section of the CM (EC). At the outset, it had been
noted that the traffic from Chennai bound to Salem/Coimbatore
and Pallakad (Kerala) currently uses the ChennaiKrishnagiri
section of the Golden Quadrilateral (ChennaiBengaluru) and the
KrishnagiriSalem section of the NorthSouth corridor or the
ChennaiTindivanamUlundurpet section of the CM (EC) and the
UlunderpetSalem Intercorridor route, thereby congesting
ChennaiKrishnagiri section of Golden Quadrilateral and
84
ChennaiTindivanam (72,000 PCU) – Ulundurpet (47,000 PCU)
section of the CM (EC). It is well settled that the findings of
expert bodies in technical and scientific matters would not
ordinarily be interfered with by the Courts – as observed in
paragraphs 59 to 62 of (supra)
Akhil Bharat Goseva Sangh
(also see – K. Vasudevan Nair & Ors. vs. Union of India &
47
and
Ors. Systopic Laboratories (Pvt.) Ltd. vs. Dr. Prem
48
Gupta & Ors. ). Again, in Kushala Shetty (supra), this Court
analysed the provisions of the 1956 Act (Sections 3A to 3D) and
opined that it is not open to the Court to castigate the reasons
weighed with the competent authority. As we are dealing with
this decision, we may note with approval dictum about the
functions of the NHAI, as adverted to in paragraph 28 of the
reported judgment. The same reads thus:
“ Here, it will be apposite to mention that NHAI is a pro
28.
fessionally managed statutory body having expertise in the
field of development and maintenance of national highways.
The projects involving construction of new highways and
widening and development of the existing highways, which
are vital for the development of infrastructure in the country,
are entrusted to experts in the field of highways. It comprises
of persons having vast knowledge and expertise in the field
of highway development and maintenance. NHAI prepares
and implements projects relating to development and main
tenance of national highways after thorough study by ex
47 1991 Supp (2) SCC 134 (paragraphs 19 and 20)
48 1994 Supp (1) SCC 160
85
| perts in different fields. Detailed project reports are prepared<br>keeping in view the relative factors including intensity of<br>heavy vehicular traffic and larger public interest. The courts<br>are not at all equipped to decide upon the viability and<br>feasibility of the particular project and whether the par<br>ticular alignment would subserve the larger public inter<br>est. In such matters, the scope of judicial review is very<br>limited. The court can nullify the acquisition of land<br>and, in the rarest of rare cases, the particular project, if<br>it is found to be ex facie contrary to the mandate of law<br>or tainted due to mala fides. In the case in hand, neither<br>has any violation of mandate of the 1956 Act been estab<br>lished nor has the charge of malice in fact been proved.<br>Therefore, the order under challenge cannot be sustained.” | |
|---|
| (emphasis supplied) |
44. Thus understood, there is no substance in the argument
that the change of stretch/section to CKS (National Corridor)
was not based on any tangible material to sustain the stated
decision of the Committee. Indeed, the necessity to enhance the
existing section of Economic Corridor between ChennaiMadurai
was taken note of in the principal Pariyojna. However, the
Committee, as per the discretion bestowed in it in terms of the
approved Pariyojna, whilst reckoning the imperatives of the
region under consideration for micro level implementation, took a
conscious decision to opt for CKS (National Corridor) being
relatively more beneficial and to strengthen the National Corridor;
and at the same time increase efficiency of the existing economic
corridor. Such decision, obviously, partakes the colour of a
86
policy decision of the Central Government, which is also backed
by the guidelines issued on 26.2.2018 by the competent
authority of the same Ministry of the Government of India,
MoRTH (Planning Zone). This communication refers to the
approval of the Project (Bharatmal Pariyojna Phase I) by the
CCEA in October, 2017 recording obstructions/difficulties faced
during upgradation of the existing road arteries. After reckoning
those issues, it is observed as follows:
“Annexure – 1.1
No. NH15017/21/2018 – P&M
Government of India
Ministry of Road Transport & Highways
(Planning Zone)
Transport Bhawan, 1, Parliament Street, New Delhi –
110001
Dated: February 26, 2018
To,
1. The Chief Secretaries of all the State Government/ UTs
2. The Principal Secretaries/Secretaries of all States/UTs
Public Works Department dealing with National
Highways, other centrally sponsored schemes.
3. All EngineersinChief and Chief Engineers of Public
Works Department of States/UTs dealing with
National Highways, other centrally sponsored
schemes.
4. The Chairman, National Highways Authority of India,
G5 & 6, Sector10, Dwarka, New Delhi110075.
5. The Managing Director, NHIDCL, PTI Building, New
Delhi110001
6. All CERos, Ros and ELOs of the Ministry
7. The Director General (Border Roads), Seema Sadak
Bhawan, Ring Road, New Delhi110010
Subject: Determination of Alignment/route for widening
of National Highways – approach reg.
87
1. The Ministry of Road Transport & Highways has been
undertaking development of National Highways across the
country through its various project executing agencies,
namely, the NHAI, NHIDCL, the State PWDs and the BRO.
The programme for construction and development of
National Highways acquired a new dimension with the
construction of Golden Quadrilateral (GQ) and the North
South and EastWest Corridors in the country. Though the
National Highways account for only about 2% of the total
road network of the country, it is primarily because of
construction of national corridors that the NHs today carry
and support movement of more than 40% of the road traffic.
2. With the exception of GQ and the NorthSouth and
EastWest Corridors and a few more prominent greenfield
Highways/Expressways, the Central Government has been
generally taking up development of NH Projects through up
gradation of the existing State Highways, major district
roads and other roads, which, in other words, are known as
the brownfield projects. The configuration of National
Highways varies from – TwoLane with paved shoulders
(largely covering the NHs connecting interiors, backward &
tribal areas, tourist destinations, and the roads constructed
in the hill states of Northwest and Northeast), to up
gradation from the existing 2lane roads to fourlane/six
lane and eightlane, depending upon traffic volumes between
the origin, intervening and destination points.
3. Approval of the Bharatmala Pariyojana by the CCEA in
October 2017, marks a major shift in approach, with focus
on corridor approach, wherein it is planned to optimize the
efficiency of existing National Corridors, develop Economic
Corridors and new Expressways, take up roads for inter
connectivity, apart from construction of ring roads/
bypasses around 28 major towns to remove the congestion
and choke points. The ultimate intended objective is to
construct major road corridors with improved geometry,
which reduce travel time and costs, and help in faster
movement of people and goods with attendant road
safety parameters .
4. The lower categories of existing roads contain several
inherent deficiencies especially in conformance to design
standards, alignment/ geometry, land width etc. which at
times also become road safety hazards and which are not
addressed before declaration of these roads as National
Highways. Upgradation of the existing road arteries to
88
National Highways has been found to be suboptimal in
many cases due to the following factors:
(i) Existing roads have been developed with
greater focus on connecting the enroute towns
and places, which is often seen to be
compromising on the road geometry and leading
to longer distance between the major origin
destination points. A majority of these roads
follow serpentine alignments as compared to
crowflight alignments;
(ii) Expansion of an existing road necessarily
involves: (a) acquisition of additional land for the
required Right of Way (RoW), (b) shifting of
utilities, and (c) felling of trees along the existing
alignment. Further, as road arteries are
considered to create huge value to the land
abutting the road and the adjoining areas, the
land situated along/ abutting any existing road
artery (including a rural road) costs at least twice
as much as the land under a greenfield alignment
would do;
(iii) Serious constraints have been faced in
acquisition of land for widening of an existing
road especially in areas where
habitations/commercial activities have come up
over time, which necessitate demolition of existing
structures in such inhabited areas, which often
leads to compromise on the required uniform RoW
and entail associated costs & time;
(iv) Removal/demolition of existing builtup
structures along the required RoW makes it not
only difficult but also far more expensive in terms
of the associated costs. It becomes all the more
challenging when it comes to removal of religious
structures (e.g. temples, mosques churches etc.
which are again found to be in existence in large
numbers along the existing roads);
(v) Widening of existing roads further
necessarily requires shifting of the utilities
(electrical, water supply and other utilities) laid
along the existing RoW, entailing considerable
costs and time;
(vi) Further, in the same vein, widening of the
existing roads require felling of trees, requiring
forest related approvals and associated costs in
89
terms of payment of NPV and felling charges apart
from damage to the existing green cover and the
time taken in completion of these processes.
5.
As such, the determination of proper alignment of
a NH project has become very critical. While selecting
the route/alignment of the National Highways, various
factors are to be considered such as the cost of land,
cost of building/establishment, cost of shifting of
utilities, construction cost of the road, cost of the safety
features, transportation cost/road user cost,
maintenance cost etc. In such a situation, there is every
likelihood of achieving a better alternative in the form of
a greenfield alignment, a few km away, to the left/right
or north/south of the existing alignment . A few test cases
have shown that most of these challenges are effectively met.
If we take up construction of greenfield NH arteries,
especially where the traffic volumes justify upgradation of a
twolane road to higher configurations, which offer the
following advantages:
(i) Typically, the available RoW in an existing
2lane road varies between 12 mtrs to 24 mtrs
maximum. As per the NH norms for a 4/6/8
lane Highway, we require a minimum RoW of 60
mtrs. (the norm for an Expressway is 90 mtrs.).
It has been found that it is eminently feasible
to acquire a RoW of 60 to 70 mtrs for the
greenfield in the same cost as involved in
expansion of an existing road, especially when
we take into account the associated costs and
time taken in utility shifting, treefelling,
additional compensation for demolition of
structures coming in the expanded RoW;
(ii) A greenfield Highway with a RoW of 60 to
70 mtrs. would cater to the trafficflows and up
gradation of such Highway up to 8lanes, along
with service roads, wherever required (say, it
gives a long term perspective of about next 30
to 40 years);
(iii) Offers the choice of a nearperfect (crow
flight) road geometry, with reduced distance
and savings on traveltime and fuel costs. The
towns situated in close vicinity to such
90
alignments can always be connected to the
Highway with spurs:
(iv) The land acquisition is faster, with
minimal resistance and costeffective;
(v) It opens up the potential for development
of new areas and wealth creation for the less
developed areas .
6. It has also been observed that in case National
Highways are developed along the existing roads alignments,
the problems of traffic hazards are not substantially resolved
especially in the city/town area, which may lead to delays
and congestion costs also. In case of greenfield alignment,
it becomes feasible to avoid such delays and
congestions. As such, in carrying out the costbenefit
analysis of both the options, factors such as
environmental and social impact may also be considered
besides carrying out cost comparison towards delays and
congestion removal .
7. Accordingly, the Consultants involved in preparation of
DPRs for development of National Highways, especially
where it is proposed to upgrade an existing twolane
Highway to a higher configuration of 4/6/8 lane, and where
Notification under Section 3D of the NH Act, 1956 has not
yet been issued, shall necessarily carry out a comparative
costbenefit analysis while recommending the
route/alignment of highway development along the existing
alignment, with the alternate option of a greenfield
alignment, which is a few kms away from the existing
alignment. While carrying out the cost benefit analysis of
both the options, the following factors shall be considered:
(i) Extant of land acquisition and the associated
costs;
(ii) Number of structures required to be acquired
along their extant and costs.
(iii) The quantum of utilities and costs required
for their shifting.
(iv) The extent of treefelling and the associated
cost & time for obtaining the requisite permissions.
8. Keeping the aforesaid in view, agencies executing
the NH projects on behalf on MoRTH, are hereby advised
to:
91
(i) Require their DPR consultants for each
project (especially wherein it is envisaged to be
upgraded to 4lane and above configurations and
in respect of which Notification under Section
3D has not been issued), to examine the
feasibility of development of a greenfield NH in
each case;
(ii) While examining the feasibility of a green
field alignment between the origin and
destination points, it should, as far as possible,
follow a crowflight route alignment with a little
distance from the existing habitations/towns
and identify the towns that need to be
connected through spurs.
(iii) Clearly bring out in its report the
advantages in terms of reduction in
length/distance, geometric improvements and
other advantages along with the costbenefit
analysis so as to enable the competent authority
to take considered decisions in this behalf.
9. Approach to development of NH along a Greenfield
alignment:
In case the greenfield alignment option works
out to be a preferred option, then –
(i) The entire RoW (60m70m) may be
acquired for a maximum capacity of 8 lane main
carriageway with provision for service roads. In
case of Expressways, 90m RoW shall be
acquired.
(ii) Initially 4lane carriageway with 4lane
structures shall be developed with additional
land left in the median for future expansion.
(iii) The highway shall have provision for
service roads, preferably of 10 mtrs width, with
maximum accesscontrol for the main carriage
way.
(iv) Access to the towns/cities/establishments
located on the existing National Highway, may
be provided through spurs from the greenfiled
route .
10. It has, therefore, been decided with the approval of
competent authority that such analysis is to be made an
92
integral part of the DPR preparation. Accordingly, the
contents of this circular may be incorporated in the TOR of
the DPR consultancy. All the executive agencies are
requested to adhere to these guidelines.”
(emphasis supplied)
45. There is no challenge to these guidelines. Indeed, these
guidelines have been issued after the decision was already taken
on 19.1.2018 in respect of section CKS (NC) in lieu of CM
(EC) section. However, it needs to be understood that the
decision was taken by the broadbased Committee of experts, of
which the Secretary of the same Ministry (MoRTH) which had
issued the guidelines on 26.2.2018, was the Chairperson
alongwith the other officials including the officials of NHAI. The
decision regarding change is a policy decision. Moreso, keeping
in mind that the change in alignment and the purpose of such a
change is stated to be for strengthening the national corridor in
preference to the economic corridor in the region, it is not open to
disregard this opinion of the Central Government based on the
recommendation of the Committee constituted by it for that
singular purpose.
This Court in (supra) had held
46. Sooraram Pratap Reddy
that it is the primary duty of the competent authority to decide
whether there exists public purpose or not. The Courts may not
93
ordinarily interfere with that unless the power is being exercised
malafide or for collateral purposes or the decision is dehors the
Act, irrational or otherwise unreasonable or socalled purpose is
no public purpose at all and fraud of statute is manifest.
Further, it is not for the Courts to sit over such decision as a
Court(s) of appeal and to disregard it merely because another
option would have been more beneficial. We may usefully advert
to the dictum of the Constitution Bench of this Court in
Somawanti (supra). In paragraph 36 (of SCCOnline), the Court
observed thus:
“ Now whether in a particular case the purpose for which
36.
land is needed is a public purpose or not is for the State
Government to be satisfied about. If the purpose for which
the land is being acquired by the State is within the legisla
tive competence of the State the declaration of the Govern
ment will be final subject, however, to one exception. That
exception is that if there is a colourable exercise of power the
declaration will be open to challenge at the instance of the
aggrieved party. The power committed to the Government by
the Act is a limited power in the sense that it can be exer
cised only where there is a public purpose, leaving aside for
a moment the purpose of a company. If it appears that what
the Government is satisfied about is not a public purpose
but a private purpose or no purpose at all the action of the
Government would be colourable as not being relatable to
the power conferred upon it by the Act and its declaration
will be a nullity. Subject to this exception the declaration of
the Government will be final.”
In the present case, it is seen that the basis for taking such
informed decision by the Committee is ascribable to tangible
94
aspects referred to in the minutes of the meeting held on
19.1.2018 (as is manifest from the factual aspects recorded
therein). The decision of this Court in
Dwarkadas Marfatia &
Sons (supra) will be of no avail, because we find that the decision
of the Committee was wellinformed and backed by reasons
guided by public interest. We must remind ourselves of the word
of caution noted by this Court in (supra) that
Col. A.S. Sangwan
the Courts should be loath in dealing with policy and
administrative reasons. The Court observed thus:
| “4. …. A policy once formulated is not good for ever; it is<br>perfectly within the competence of the Union of India to<br>change it, rechange it, adjust it and readjust it according<br>to the compulsions of circumstances and the impera<br>tives of national considerations. We cannot, as court,<br>give directives as to how the Defence Ministry should<br>function except to state that the obligation not to act ar<br>bitrarily and to treat employees equally is binding on the<br>Union of India because it functions under the Constitu<br>tion and not over it. … So, whatever policy is made should<br>be done fairly and made known to those concerned. So, we<br>make it clear that while the Central Government is beyond<br>the forbiddance of the court from making or changing its pol<br>icy in regard to the Directorate of Military Farms or in the<br>choice or promotion of Brigadiers, it has to act fairly as every<br>administrative act must be done.” | |
|---|
| (emphasis supplied) |
We may usefully advert to yet another decision of this Court in
Cipla Ltd. (supra), wherein the Court observed thus:
95
| “4.1. It is axiomatic that the contents of a policy docu<br>ment cannot be read and interpreted as statutory provi<br>sions. Too much of legalism cannot be imported in un<br>derstanding the scope and meaning of the clauses con<br>tained in policy formulations. At the same time, the Cen<br>tral Government which combines the dual role of policy<br>maker and the delegate of legislative power, cannot at its<br>sweet will and pleasure give a goby to the policy guidelines<br>evolved by itself in the matter of selection of drugs for price<br>control. … It is nobody's case that for any good reasons,<br>the policy or norms have been changed or have become<br>impracticable of compliance. That being the case, the<br>Government exercising its delegated legislative power<br>should make a real and earnest attempt to apply the cri<br>teria laid down by itself. The delegated legislation that fol<br>lows the policy formulation should be broadly and substan<br>tially in conformity with that policy, otherwise it would be<br>vulnerable to attack on the ground of arbitrariness resulting<br>in violation of Article 14. | | |
|---|
| 4.2. In Indian Express Newspapers (Bom) (P) Ltd. v. Union of<br>India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121] the grounds<br>on which subordinate legislation can be questioned were<br>outlined by this Court. E.S. Venkataramiah, J. observed<br>thus: (SCC p. 689, para 75) | | |
| “75. A piece of subordinate legislation does not<br>carry the same degree of immunity which is en<br>joyed by a statute passed by a competent legisla<br>ture. Subordinate legislation may be questioned on<br>any of the grounds on which plenary legislation is<br>questioned. In addition it may also be questioned<br>on the ground that it does not conform to the<br>statute under which it is made. … It may also be<br>questioned on the ground that it is unreasonable,<br>unreasonable not in the sense of not being reason<br>able, but in the sense that it is manifestly arbi<br>trary. In England, the Judges would say ‘Parlia<br>ment never intended authority to make such rules.<br>They are unreasonable and ultra vires’.” | |
| 4.3. True, the breach of policy decision by itself is not a<br>ground to invalidate delegated legislation. … No doubt, in<br>such matters, wide latitude is conceded to the legisla<br>ture or its delegate. Broadly, the subordinate lawmaking<br>authority is guided by the policy and objectives of the<br>primary legislation disclosed by the preamble and other<br>provisions. The delegated legislation need not be mod | | |
96
elled on a set pattern or prefixed guidelines . However,
where the delegate goes a step further, draws up and an
nounces a rational policy in keeping with the purposes of the
enabling legislation and even lays down specific criteria to
promote the policy, the criteria so evolved become the guide
posts for its legislative action. In that sense, its freedom of
classification will be regulated by the selfevolved criteria
and there should be demonstrable justification for deviating
therefrom. Though exactitude and meticulous conformance
is not what is required, it is not open to the Government to
go haywire and flout or debilitate the set norms either by giv
ing distorted meaning to them or by disregarding the very
facts and factors which it professed to take into account in
the interest of transparency and objectivity. …”
(emphasis supplied)
47. Be it noted that the notifications under Section 2(2) to
declare the CKS (NC) section as NH179A and NH179B, as the
case may be, were issued only after due deliberation by the
broadbased committee of experts, which decision we find is also
in conformity with the guidelines contemporaneously issued by
the concerned department on the same subject matter. Such a
decision cannot be labelled as manifestly arbitrary, irrational or
taken in undue haste as such. As a result, it was not open to the
High Court to interfere with the change so articulated in the
meeting held on 19.1.2018 or the notifications issued under
Section 2(2) of the 1956 Act declaring CKS (NC) as a national
highway (i.e. NH179A and NH179B). The declaration of a
highway being a national highway is within the exclusive domain
97
of the Central Government in terms of Section 2(2) of the 1956
Act. The argument of the land owners that prior approvals ought
to have been obtained from the CCEA and regarding budgetary
arrangement, is premised on the manuals which govern the
functioning of the executing agency (NHAI). As the decision
regarding change of stretch/section has been taken by the
concerned department of the Central Government itself and the
approved Project (Bharatmala Pariyojna Phase I) also recognises
that such change in the form of substitution/replacement of the
stretch/section can be done by the Ministry upto 15% length of
24,800 kms., so long as it does not entail in incurring of
additional costs, it becomes integral part of the originally
approved project (for Phase I) for all purposes. In the present
case, the costs for construction of CKS (NC) were bound to be
less than the originally conceived CM (EC), as the length of the
road is reduced significantly. In other words, it would operate as
minor change to the original plan with deemed approval thereof
and get interpolated therein. Further, the minutes recorded on
19.1.2018 do indicate that the decision was to be placed before
the CCEA in the ensuing biannual meeting, where it would be
duly ratified. Suffice it to observe that the decision taken by the
98
Committee which culminated with the issuance of notification
under Section 2(2) of the 1956 Act is in complete conformity with
the governing provisions and guidelines and founded on tangible
and objective facts noted in the minutes dated 19.1.2018. The
Central Government had full authority to adopt such a change of
stretch/section, by way of substitution/replacement whilst
ensuring that there is no need for higher budgetary allocation
than envisaged in the already approved programme for Phase I.
Thus, there is no legal basis to doubt the validity of the
notification under Section 2(2) and ex consequenti Section 3A of
the 1956 Act as well.
48. The High Court has completely glossed over these crucial
aspects and entered into the domain of sufficiency and adequacy
of material including the appropriateness of the route approved
by the competent authority. Such enquiry, in exercise of judicial
review is forbidden. Furthermore, the High Court, despite noting
that judicial interference in acquisition matters is limited, went
on to interfere in the guise of extraordinary circumstances
obtaining in this case. On a thorough perusal, the impugned
judgment does not reveal any just circumstance for invoking the
judicial review jurisdiction. In light of the above discussion, we
99
hold that challenge to the decision of the Committee and ex
consequenti of the Central Government, regarding change of
section – CM (EC) to CKS (NC) at the micro level for the
implementation of the original Project as approved, ought not to
have been doubted by the High Court. Notably, in the final
conclusion and declaration issued by the High Court, it has
justly not struck down the notifications under Section 2(2) of the
1956 Act. In other words, so long as Section 2(2) of the 1956 Act
was to remain in force and the decision regarding change of
stretch/section to CKS (NC) being the foundation for issue of
notification under Section 3A, would continue to bind all
concerned and in particular, the officials of NHAI being the
executing agency.
PRIOR ENVIRONMENTAL/FOREST CLEARANCE: STAGE
49. That takes us to the next challenge premised on the
argument that notification under Section 3A(1) of the 1956 Act
could not have been issued without prior permission of the
competent authority under the environmental/forest laws. This
argument is based on the dictum of this Court in Karnataka
Industrial Areas Development Board (supra). In paragraph
100
100 of the said decision, a general direction came to be issued
that in future, before acquisition of lands for development, the
consequence and adverse impact of development on environment
must be properly comprehended and the lands be acquired for
development that they do not gravely impair the ecology and
environment. Paragraphs 100 and 101 of the reported decision
are extracted hereunder:
| “100. The importance and awareness of environment and<br>ecology is becoming so vital and important that we, in our<br>judgment, want the appellant to insist on the conditions em<br>anating from the principle of “Sustainable Development”: | | |
|---|
| (1) We direct that, in future, before acquisi<br>tion of lands for development, the conse<br>quence and adverse impact of development<br>on environment must be properly compre<br>hended and the lands be acquired for devel<br>opment that they do not gravely impair the<br>ecology and environment. | |
| (2) We also direct the appellant to incorporate<br>the condition of allotment to obtain clearance<br>from the Karnataka State Pollution Control<br>Board before the land is allotted for develop<br>ment. The said directory condition of allotment<br>of lands be converted into a mandatory condi<br>tion for all the projects to be sanctioned in fu<br>ture. | |
| 101. This has been an interesting judicial pilgrimage for the<br>last four decades. In our opinion, this is a significant contri<br>bution of the judiciary in making serious endeavour to pre<br>serve and protect ecology and environment, in consonance<br>with the provisions of the Constitution.” | | |
| (emphasis supplied) | | |
Support is also drawn from the notification/Office Memorandum
issued by the MoEF dated 14.9.2006 and 7.10.2014 respectively.
Our attention is also invited to exposition in M. Velu (supra),
following the aforementioned decision of this Court.
101
50. The question as to whether the competent authority under
the 1956 Act is obliged to take prior permission before issuing
notification under Section 3A of the Act, must be answered
primarily on the basis of the scheme of the enactments under
consideration. As regards power to acquire land for the purpose
of building, maintenance, management and operation of a
national highway or part thereof, the same has been bestowed on
the Central Government in terms of Section 3A of the 1956 Act.
There is nothing in the 1956 Act, which impels the Central
Government to obtain prior environment clearance before
exercise of that power and in issuing notification under Section
2(2), much less Section 3A expressing its intention to acquire the
designated land.
51. The Central Government has framed rules in exercise of
power under Section 9 of the 1956 Act, titled as the National
49
Highways Rules, 1957 . These rules are required to be followed
by the executing agency. There is nothing, even in these Rules,
to remotely suggest that the Central Government is obliged to
obtain prior permission(s) under environmental/forest laws
before issuing notification under Section 3A. The executing
49 For short “the 1957 Rules”
102
agency is none else, but established under the 1988 Act, namely,
the NHAI. Before NHAI commences the execution of any original
work, it has to abide by the norms specified in the 1957 Rules
regarding preparation of estimate of work etc. The Schedule of
the 1957 Rules stipulates conditions for the issue of technical
approval and financial sanction to plan and estimate for
execution of any original work on a national highway costing an
amount not exceeding Rs.50 lakhs by the executing agency
concerned. Neither the 1956 Act, the Rules framed thereunder
i.e. the 1957 Rules nor the 1988 Act and the Rules made
thereunder have any bearing on the question under
consideration. None of these enactments/rules specify any
express condition requiring Central Government to obtain prior
environmental/forest clearance before issuing notification under
Section 2(2) declaring the stretch/section to be a national
highway or Section 3A of the 1956 Act to express intention to
acquire land for the purpose of building, maintenance,
management or operation of a national highway, as the case may
be.
Reverting to the notification issued by the MoEF dated
52.
14.9.2006, even this notification does not constrict the power of
103
Central Government to issue notification under Section 2(2) or
Section 3A of the 1956 Act. There is nothing to suggest that
before expressing intention to acquire any land for the purpose of
the 1956 Act, prior environmental/forest clearance is required.
The environmental/forest clearance, however, is, required to be
obtained by the executing agency in terms of this notification
“before commencing the actual work or executing the proposed
work/project”. That would happen only after the land is vested
in the NHAI or the NHAI was to be entrusted with the
development work of concerned national highway by the Central
Government in exercise of powers under Section 5 of the 1956
Act read with Section 11 of the 1988 Act. The land would vest in
the Central Government under the 1956 Act only after
publication of declaration of acquisition under Section 3D. And
until then, the question of Central Government vesting it in
favour of NHAI under Section 11 of the 1988 Act would not arise.
However, until the vesting of the land, the Central Government
and its authorised officer can undertake surveys of the notified
lands by entering upon it in terms of Section 3B of the Act.
Pertinently, the activities predicated in Section 3B are of
exploration for verifying the feasibility and viability of land for
104
construction of a national highway. These are onetime activities
and not in the nature of exploitation of the land for continuous
commercial/industrial activities as such. There is remote
possibility of irretrievable wide spread environmental impact due
to carrying out activities referred to in Section 3B for assessing
the worthiness of the land for using it as a national highway.
Thus, the question of applying notification of 2006 at this stage
does not arise, much less obligate the Central Government to
follow directives thereunder.
53. We may now revert to Section 4 of the 1956 Act. That
provides for vesting of the national highway in the Union and
after such vesting, the primary responsibility of developing and
maintaining the national highway is that of the Central
Government. In terms of Section 5, it is open to the Central
Government to call upon the Government of the State within
which the national highway is situated or by any officer or
authority subordinate to the Central Government or to the State
Government. Section 5 reads thus:
“ 5. Responsibility for development and maintenance of
national highways . – It shall be the responsibility of the
Central Government to develop and maintain in proper
repair all national highways; but the Central Government
may, by notification in the Official Gazette, direct that any
105
function in relation to the development or maintenance of
any national highway shall, subject to such conditions, if
any, as may be specified in the notification, also be
exercisable by the Government of the State within which the
national highway is situated or by any officer or authority
subordinate to the Central Government or to the State
Government.”
As per Section 6, the Central Government is competent to issue
directions to the Government of any State for carrying out the
provisions of the Act within the State.
54. It is indisputable that NHAI is an authority appointed by the
Central Government under the 1988 Act. This authority is a
functional body constituted under Section 3 of the 1988 Act.
Chapter III of the 1988 Act provides for the manner of dealing
with the contracts to be entered into by NHAI. Sections 11 to 13
deal with the power of the Central Government to vest in or
entrust to the Authority (NHAI), transfer of assets and liabilities
of the Central Government to the Authority (NHAI) and the
compulsory acquisition of land for the Authority. The same read
thus:
“ 11. Power of the Central Government to vest or entrust
any national highway in the Authority. —The Central
Government may, from time to time, by notification in the
Official Gazette, vest in, or entrust to, the Authority, such
national highway or any stretch thereof as may be specified
in such notification.
106
12. Transfer of assets and liabilities of the Central
—(1) On and from the date
Government to the Authority.
of publication of the notification under section 11,—
(a) all debts, obligations and liabilities incurred, all
contracts entered into and all matters and things engaged to
be done by, with, or for, the Central Government,
immediately before such date for or in connection with the
purposes of any national highway or any stretch thereof
vested in, or entrusted to, the Authority under that section,
shall be deemed to have been incurred, entered into and
engaged to be done by, with, or for, the Authority;
(b) all nonrecurring expenditure incurred by or for the
Central Government for or in connection with the purposes
of any national highway or any stretch thereof, so vested in,
or entrusted to, the Authority, up to such date and declared
to be capital expenditure by the Central Government shall,
subject to such terms and conditions as may be prescribed,
be treated as capital provided by the Central Government to
the Authority;
(c) all sums of money due to the Central Government in
relation to any national highway or any stretch thereof, so
vested in, or entrusted to, the Authority immediately before
such date shall be deemed to be due to the Authority;
(d) all suits and other legal proceedings instituted or
which could have been instituted by or against the Central
Government immediately before such date for any matter in
relation to such national highway or any stretch thereof may
be continued or instituted by or against the Authority.
(2) If any dispute arises as to which of the assets, rights or
liabilities of the Central Government have been transferred
to the Authority, such dispute shall be decided by the
Central Government.
13. Compulsory acquisition of land for the Authority. —
Any land required by the Authority for discharging its
functions under this Act shall be deemed to be land needed
for a public purpose and such land may be acquired for the
Authority under the provisions of the National Highways Act,
1956 (48 of 1956).
Chapter IV of the 1988 Act, in particular, Section 16 thereof,
deals with the functions of the Authority (NHAI). The same reads
thus:
107
“ 16. Functions of the Authority. — (1) Subject to the rules
made by the Central Government in this behalf, it shall be
the function of the Authority to develop, maintain and
manage the national highways and any other highways
vested in, or entrusted to, it by the Government.
(2) Without prejudice to the generality of the provisions
contained in subsection (1), the Authority may, for the
discharge of its functions—
(a) survey, develop, maintain and manage highways
vested in, or entrusted to, it;
(b) construct offices or workshops and establish
and maintain hotels, motels, restaurants and rest
rooms at or near the highways vested in, or entrusted
to, it;
(c) construct residential buildings and townships
for its employees;
(d) regulate and control the plying of vehicles on the
highways vested in, or entrusted to, it for the proper
management thereof;
(e) develop and provide consultancy and
construction services in India and abroad and carry on
research activities in relation to the development,
maintenance and management of highways or any
facilities thereat;
(f) provide such facilities and amenities for the
users of the highways vested in, or entrusted to, it as
are, in the opinion of the Authority, necessary for the
smooth flow of traffic on such highways;
(g) form one or more companies under the
Companies Act, 1956 (1 of 1956) to further the
efficient discharge of the functions imposed on it by
this Act;
(h) engage, or entrust any of its functions to, any
person on such terms and conditions as may be
prescribed;
(i) advise the Central Government on matters
relating to highways;
(j) assist, on such terms and conditions as may be
mutually agreed upon, any State Government in the
formulation and implementation of schemes for
highway development;
(k) collect fees on behalf of the Central Government
for services or benefits rendered under section 7 of the
108
National Highways Act, 1956 (48 of 1956), as amended
from time to time, and such other fees on behalf of the
State Governments on such terms and conditions as
may be specified by such State Governments; and
(l) take all such steps as may be necessary or
convenient for, or may be incidental to, the exercise of
any power or the discharge of any function conferred
or imposed on it by this Act.
(3) Nothing contained in this section shall be construed as
—
(a) authorising the disregard by the Authority of
any law for the time being in force; or
(b) authorising any person to institute any
proceeding in respect of a duty or liability to which the
Authority or its officers or other employees would not
otherwise be subject under this Act.”
On plain and harmonious construction of the provisions of
55.
the two enactments (i.e. the 1956 Act and the 1988 Act), it is
amply clear that at the stage of issuing notifications under
Section 2(2) or for that matter, Section 3A of the Act, there is no
need to seek prior permission (by the Central Government) under
environmental laws or the forest laws, as the case may be.
Further, the purpose of public hearing in the concerned
enactments (namely, the 1956 and 1988 Acts on the one hand
and the 1986 Act or forest laws, on the other) is qualitatively
different and contextual to matters relevant under the concerned
enactment. The competent authority in the former, may be
satisfied that the acquisition of land in question is for public
purpose, but if the competent authority under the latter
109
legislations is of the view that the execution of the project in
question (construction of a national highway) or any portion
thereof may cause irretrievable comprehensive impact on the
environment or the forests, as the case may be, would be
competent to deny permission to such a project as a whole or
part thereof. That decision must then prevail, being in public
interests. This is not to say that one competent authority is
superior to the other, but such balancing becomes essential to
effectuate the public purposes under the stated enactments. It is
quite possible that the executing agency (NHAI) may be able to
convince the competent authority under the latter enactments
that certain remedial steps can minimise or mitigate the
environmental impact or to the forest, as the case may be, and
commend it to accord conditional approval/permission to execute
the project so as to conform to the tenets of sustainable
development. If that suggestion commends to the competent
authority under the environmental/forest laws, such
clearance/permission can be granted after the public hearing.
56. As regards the decision in
Raghbir Singh Sehrawat
(supra), the same may have relevance at the time of considering
110
the objections to be dealt with by the competent authority under
the 1956 Act during the public hearing under Section 3C. The
dictum in this decision cannot be the basis to doubt the well
considered decision dated 19.1.2018 nor the notification issued
by the Central Government under Section 2(2) of the 1956 Act
declaring the stretch between CKS (NC) as a national highway.
57. Even in the case of R.S. Nanji (supra), the Constitution
Bench highlighted the sweep of expression “public purpose” in
the context of challenge to the order of the competent authority to
requisition the premises. As noted earlier, the satisfaction
regarding public interests or necessity to acquire the land in
question for public purpose for construction of a new national
highway, is a matter which needs to be considered by the
competent authority during the public hearing under Section 3C
of the 1956 Act. The challenge before the High Court in the
present case was before that stage had reached, for which reason
we do not wish to dilate on this reported decision any further.
58. Suffice it to observe that the subject notification of 2006
and Office Memorandum dated 7.10.2014 ordain that such
permission is required to be obtained (only) before
111
commencement of the work of the new project or activities or on
the expansion or improvisation of the project or activities based
on their potential environment impact. The notification dated
14.9.2006 reads thus:
“ (Published in the Gazette of India, Extraordinary, Part
II, and Section 3, Subsection (ii)
MINISTRY OF ENVIRONMENT AND FORESTS
th
New Delhi 14 September, 2006
Notification
S.O. 1533 Whereas, a draft notification
under subrule (3)
of Rule 5 of the Environment (Protection) Rules, 1986
for imposing certain restrictions and prohibitions on new
projects or activities, or on the expansion or modernization of
existing projects or activities based on their potential
environmental impacts as indicated in the Schedule to the
1
notification, being undertaken in any part of India , unless
prior environmental clearance has been accorded in
accordance with the objectives of National Environment
th
Policy as approved by the Union Cabinet on 18 May,
2006 and the procedure specified in the notification, by the
Central Government or the State or Union territory Level
Environment Impact Assessment Authority (SEIAA), to be
constituted by the Central Government in consultation with
the State Government or the Union territory Administration
concerned under subsection (3) of section 3 of the
Environment (Protection) Act, 1986 for the purpose of this
notification, was published in the Gazette of India
,Extraordinary, Part II, section 3, subsection (ii) vide
th
number S.O. 1324 (E) dated the 15 September ,2005
inviting objections and suggestions from all persons likely to
be affected thereby within a period of sixty days from the
date on which copies of Gazette containing the said
notification were made available to the public;
And whereas, copies of the said notification were made
th
available to the public on 15 September, 2005;
112
And whereas, all objections and suggestions received in
response to the above mentioned draft notification have been
duly considered by the Central Government;
Now, therefore, in exercise of the powers conferred by sub
section (1) and clause (v) of subsection (2) of section 3 of
the Environment (Protection) Act, 1986, read with clause (d)
of subrule (3) of rule 5 of the Environment (Protection)
Rules, 1986 and in supersession of the notification number
th
S.O. 60 (E) dated the 27 January, 1994, except in respect
of things done or omitted to be done before such
supersession, the Central Government hereby directs that on
and from the date of its publication the required construction
of new projects or activities or the expansion or
modernization of existing projects or activities listed in the
Schedule to this notification entailing capacity addition with
change in process and or technology shall be undertaken in
any part of India only after the prior environmental clearance
from the Central Government or as the case may be, by the
State Level Environment Impact Assessment Authority, duly
constituted by the Central Government under subsection (3)
of section 3 of the said Act, in accordance with the procedure
specified hereinafter in this notification .
2. Requirements of prior Environmental Clearance (EC):
The following projects or activities shall require prior
environmental clearance from the concerned regulatory
authority, which shall hereinafter referred to be as the
Central Government in the Ministry of Environment and
Forests for matters falling under Category ‘A’ in the Schedule
and at State level the State Environment Impact Assessment
Authority (SEIAA) for matters falling under Category ‘B’ in
the said Schedule, before any construction work, or
preparation of land by the project management except for
securing the land, is started on the project or activity:
to this notification;
or activities listed in the Schedule to this
notification with addition of capacity beyond the
limits specified for the concerned sector, that is,
projects or activities which cross the threshold
limits given in the Schedule, after expansion or
modernization;
(iii) Any change in product mix in an existing
manufacturing unit included in Schedule beyond
the specified range.
113
3. State Level Environment Impact Assessment
Authority:
…..
4. Categorization of projects and activities:
categories Category A and Category B, based on the spatial
extent of potential impacts and potential impacts on human
health and natural and man made resources.
Schedule, including expansion and modernization of existing
projects or activities and change in product mix, shall
require prior environmental clearance from the Central
Government in the Ministry of Environment and Forests
(MoEF) on the recommendations of an Expert Appraisal
Committee (EAC) to be constituted by the Central
Government for the purposes of this notification;
(iii) All projects or activities included as Category ‘B’ in the
Schedule, including expansion and modernization of existing
projects or activities as specified in sub paragraph (ii) of
paragraph 2, or change in product mix as specified in sub
paragraph (iii) of paragraph 2, but excluding those which
fulfill the General Conditions (GC) stipulated in the
Schedule, will require prior environmental clearance from
the State/Union territory Environment Impact Assessment
Authority (SEIAA). The SEIAA shall base its decision on the
recommendations of a State or Union territory level Expert
Appraisal Committee (SEAC) as to be constituted for in this
notification. In the absence of a duly constituted SEIAA or
SEAC, a Category ‘B’ project shall be treated as a Category
‘A’ project;
5. Screening, Scoping and Appraisal Committees :
The same Expert Appraisal Committees (EACs) at the
Central Government and SEACs (hereinafter referred to as
the (EAC) and (SEAC) at the State or the Union territory level
shall screen, scope and appraise projects or activities in
Category ‘A’ and Category ‘B’ respectively. EAC and SEAC’s
shall meet at least once every month.
…..
114
6. Application for Prior Environmental Clearance
(EC):
An application seeking prior environmental clearance in
all cases shall be made in the prescribed Form 1 annexed
herewith and Supplementary Form 1A, if applicable, as given
in Appendix II, after the identification of prospective site(s)
for the project and/or activities to which the application
relates, before commencing any construction activity, or
preparation of land, at the site by the applicant. The
applicant shall furnish, along with the application, a copy of
the prefeasibility project report except that, in case of
construction projects or activities (item 8 of the Schedule) in
addition to Form 1 and the Supplementary Form 1A, a copy
of the conceptual plan shall be provided, instead of the pre
feasibility report.
7. Stages in the Prior Environmental Clearance (EC)
Process for New Projects:
7(i) The environmental clearance process for new projects
will comprise of a maximum of four stages, all of which may
not apply to particular cases as set forth below in this
notification. These four stages in sequential order are:
…..
III. :
Stage (3) Public Consultation
concerns of local affected persons and others who have
plausible stake in the environmental impacts of the project
or activity are ascertained with a view to taking into account
all the material concerns in the project or activity design as
appropriate. All Category ‘A’ and Category B1 projects or
115
activities shall undertake Public Consultation, except the
following:
the Schedule).
estates or parks (item 7(c) of the Schedule)
approved by the concerned authorities, and which
are not disallowed in such approvals.
Schedule) which do not involve any further
acquisition of land.
defence and security or involving other strategic
considerations as determined by the Central
Government.
(ii) The Public Consultation shall ordinarily have two
components comprising of:
proximity district wise, to be carried out in the
manner prescribed in Appendix IV, for
ascertaining concerns of local affected persons;
persons having a plausible stake in the
environmental aspects of the project or activity.
(iii) the public hearing at, or in close proximity to, the site(s) in
all cases shall be conducted by the State Pollution Control
Board (SPCB) or the Union territory Pollution Control
Committee (UTPCC) concerned in the specified manner and
forward the proceedings to the regulatory authority
concerned within 45(forty five) of a request to the effect from
the applicant.
(iv) in case the State Pollution Control Board or the Union
territory Pollution Control Committee concerned does not
undertake and complete the public hearing within the
specified period, and/or does not convey the proceedings of
the public hearing within the prescribed period directly to
the regulatory authority concerned as above, the regulatory
authority shall engage another public agency or authority
which is not subordinate to the regulatory authority, to
116
paragraph (iii) above reports to the regulatory authority
concerned that owing to the local situation, it is not possible
to conduct the public hearing in a manner which will enable
the views of the concerned local persons to be freely
expressed, it shall report the facts in detail to the concerned
regulatory authority, which may, after due consideration of
the report and other reliable information that it may have,
decide that the public consultation in the case need not
include the public hearing.
(vi) For obtaining responses in writing from other concerned
persons having a plausible stake in the environmental
aspects of the project or activity, the concerned regulatory
authority and the State Pollution Control Board (SPCB) or
the Union territory Pollution Control Committee
(UTPCC) shall invite responses from such concerned persons
by placing on their website the Summary EIA report
prepared in the format given in Appendix IIIA by the
applicant along with a copy of the application in the
prescribed form , within seven days of the receipt of a written
request for arranging the public hearing . Confidential
information including nondisclosable or legally privileged
information involving Intellectual Property Right, source
specified in the application shall not be placed on the web
site . The regulatory authority concerned may also use other
appropriate media for ensuring wide publicity about the
project or activity. The regulatory authority shall, however,
make available on a written request from any concerned
person the Draft EIA report for inspection at a notified place
during normal office hours till the date of the public hearing.
All the responses received as part of this public consultation
process shall be forwarded to the applicant through the
quickest available means.
117
8. Grant or Rejection of Prior Environmental
Clearance (EC):
…..
…
…..
…
…
[No. J11013/56/2004IAII (I)]
(R.CHANDRAMOHAN)
JOINT SECRETARY TO THE GOVERNMENT OF INDIA
118
SCHEDULE
(See paragraph 2 and 7)
LIST OF PROJECTS OR ACTIVITIES REQUIRING PRIOR
ENVIRONMENTAL CLEARANCE
| Project or<br>Activity | Category with threshold limit | | | Conditions<br>if any |
|---|
| A | B | | |
| (1) | (2) | (3) | (4) | (5) |
| xxx | xxx | | | |
| 7 | Physical Infrastructure including Environmental Services | | | |
| xxx | xxx | | | |
| 7(f) | Highways | i) New National<br>Highway; and<br>ii) Expansion of<br>National High ways<br>greater than 30 KM,<br>involving additional<br>right of way greater<br>than 20m involving<br>land acquisition and<br>passing through more<br>than one State | i) New State<br>High ways;<br>and<br>ii) Expansion<br>of National /<br>State<br>Highways<br>greater than<br>30 km<br>involving<br>additional<br>right of way<br>greater than<br>20m involving<br>land<br>acquisition. | General<br>condition<br>shall apply |
Note:
General Condition (GC):
Any project or activity specified in Category ‘B’ will be treated
as Category A, if located in whole or in part within 10 km
from the boundary of: (i) Protected Areas notified under the
Wild Life (Protection) Act, 1972, (ii) Critically Polluted areas
as notified by the Central Pollution Control Board from time
to time, (iii) Notified Ecosensitive areas, (iv) interState
boundaries and international boundaries.
Specific Condition (SC):
119
If any Industrial Estate/Complex / Export processing
Zones /Special Economic Zones/Biotech Parks / Leather
Complex with homogeneous type of industries such as Items
4(d), 4(f), 5(e), 5(f), or those Industrial estates with pre –
defined set of activities (not necessarily homogeneous,
obtains prior environmental clearance, individual industries
including proposed industrial housing within such estates
/complexes will not be required to take prior environmental
clearance, so long as the Terms and Conditions for the
industrial estate/complex are complied with (Such
estates/complexes must have a clearly identified
management with the legal responsibility of ensuring
adherence to the Terms and Conditions of prior
environmental clearance, who may be held responsible for
violation of the same throughout the life of the
complex/estate).”
(emphasis supplied in italics and underline)
The view that we have taken is reinforced from the opening
59.
part of this notification. It expounds that no project involving
potential environmental impact “shall be undertaken” or
“commenced” in any part of India without obtaining prior
environmental clearance in the manner provided for. Same
position obtains from the recitals of this notification, namely,
prior environmental clearance is required “before” any
construction work or preparation of land by the project
management, except for securing the land, is started on the
project or the activity. A priori, the decision in Delhi
(supra), does not take the matter any
Development Authority
further in the present case. Therefore, no interference is
warranted with the decision of the Committee regarding the
120
change of stretch/section to be implemented during Phase I
between CKS (NC); including the impugned notifications under
Sections 2(2) and 3A of the 1956 Act.
Be it noted that the notification of 2006 is in the nature of
60.
guidelines/directives issued by the Central Government in
exercise of its statutory powers. These directions need to be
adhered by the executing agency (NHAI) whilst undertaking the
work in furtherance of the approved project. To put it differently,
it is incomprehensible that the stated 2006 notification obliges
the Central Government to take prior permission even before the
stage of “planning” and “finalisation of the project(s)” such as in
terms of the minutes dated 19.1.2018 followed by notifications
under Sections 2(2) and 3A of the 1956 Act, as the case may be.
61. Much emphasis was placed on expression “securing the
land”, to contend that expression of intent to acquire the land
referred to in Section 3A of the 1956 Act does not come under the
excepted category. We reject this plea. In our view, the activities
required to be undertaken in furtherance of notification under
Section 3A of the 1956 Act, referred to in Section 3B of the same
Act are only to explore the feasibility and viability of the
121
stretch/section to be used as a national highway and no further.
These activities are outside the purview of notification of 2006.
62. The High Court had adverted to decisions of other
jurisdictions, namely, of American Courts, to buttress the view
that prior permission ought to be taken even before issuing
notification under Section 3A of the 1956 Act. Considering the
legislative scheme and upon giving proper meaning and
perspective to the directives issued by the Central Government in
the form of 2006 notification, we are of the considered opinion
that the dictum in those decisions will be of no avail. For, we are
of the view that it is not necessary for the Central Government or
for that matter, NHAI, to apply for prior environmental/forest
clearances or permissions, as the case may be, at the stage of
planning or taking an inprinciple decision to formalize the
Project of constructing a new national highway manifested in
notification under Section 2(2), including until the stage of
issuing notification under Section 3A of the 1956 Act.
63. If we accept the argument of the writ petitioners that the
Central Government must follow comprehensive procedure under
the environmental laws and forest laws articulating its final
decision and to issue notification under Section 2(2) of the 1956
122
Act to declare any stretch/land not being a highway as a national
highway, such approach would be counterproductive and the
functioning of the departments responsible for timely execution of
such projects would be completely paralysed and depend solely
on the outcome of the processes under the environmental laws or
forest laws, as the case may be. It cannot be overlooked that the
role of the competent authority under the environmental law or
forest law is limited to scrutiny of the formalized project brought
before it prior to its implementation by the executing agency, to
ascertain whether it may have any environmental impact and if
so, to impose such conditions by way of remedial steps to
minimise and mitigate the impact while keeping in mind the need
to fulfil the State’s obligation of sustainable development.
64. Be that as it may, one cannot be oblivious of the qualitative
difference between a project necessitating acquisition of a large
chunk of land at one place for continual commercial/industrial
activities to be carried out thereon as opposed to acquisition of a
small strip of land in the area for construction of a
road/highway. The purpose of road/highway is merely to
facilitate free passage through the same. It would have a floating
population unlike in the case of a big project at one place
123
occupying several square metres of land and engaging in
continual commercial/industrial activities thereon. The
environmental impact would be and ought to be measured in
relative terms and at the local level and site specific. Whereas,
the requirement for road/national highway would essentially be
in larger national interest.
65. For the purpose of considering the question posed before
us, suffice it to observe that the prior environmental clearance in
terms of 2006 notification issued under Section 3 of the
Environment (Protection) Act, 1986 Act read with Rule 5 of the
Environment (Protection) Rules, 1986, is required to be taken
before commencement of the “actual construction or building
work” of the national highway by the executing agency (NHAI).
That will happen only after the acquisition proceedings are taken
to its logical end until the land finally vests in the NHAI or is
entrusted to it by the Central Government for
building/management of the national highway. This position is
reinforced and explained in the Office Memorandum issued by
the MoEF dated 7.10.2014, which reads thus:
“F.No.2276/2014IAIII
Government of India
Ministry of Environment, Forest and Climate Change
Impact Assessment Division
Indira Paryavaran Bhavan,
Jor Bagh Road, Aliganj,
124
New Delhi – 110 003
th
Dated the 7 October, 2014
OFFICE MEMORANDUM
Subject: Status of land acquisition w.r.t. project site
while considering the case for environment clearance under
EIA Notification, 2006regarding
1. It has been brought to the notice of this Ministry that
in absence of any guidelines, different EACs/SEACs adopt
different criteria about the extent to which the land w.r.t. the
project site should be acquired before the consideration of
the case for environment clearance (EC). Some of the
Ministers in the Government of India and some industrial
associations have represented that full acquisition of land for
the project site should not be insisted upon before
consideration of the case for EC and instead initiation of
land acquisition process should be sufficient for the
consideration of such cases.
The argument being that land
acquisition process can go on in parallel and that
.
consideration of EC need not await full land acquisition
2. The matter has been examined the in the Ministry. The
EC granted for a project or activity under the EIA
Notification, 2006, as amended, is site specific.
While full
acquisition of land may not be prerequisite for the
consideration of the case for EC, there should be some
credible document to show the status of land acquisition
w.r.t. project site when the case is brought before the
concerned EAC/SEAC for appraisal . It has been
accordingly decided that the following documents relating to
acquisition of land w.r.t. the project site and may be
considered as adequate by EACs/SEACs at the time of
appraisal of the case for EC:
(i) In case of land w.r.t. the project site is
proposed to be acquired through Government
Intervention, a copy of preliminary
notification issued by the concerned State
Government regarding acquisition of land as
per the provision of Land Acquisition,
Rehabilitation and Resettlement Act, 2013 .
(ii) In case the land is being acquired through
private negotiations with the land owners, credible
document showing the intent of the land owner to
sell the land for the proposed project.
3. It may, however, be noted that the EC granted for
a project on the basis of aforesaid documents shall
become invalid in case the actual land for the project
site turns out to be different from the land considered at
125
the time of the appraisal of project and mentioned in the
EC .
4. This issue with the approval of the competent
authority.”
(emphasis supplied)
Applying the tenet underlying this notification, it is amply clear
that before the process of acquisition of land is ripe for
declaration under Section 3D of the 1956 Act, it would be open to
the executing agency (NHAI) to make an application to the
competent authority for environmental clearance. That process
can be commenced parallelly or alongside the acquisition process
after a preliminary notification under Section 3A of the 1956 Act,
for acquisition is issued.
66. As in this case, after notification under Section 3A of the
1956 Act came to be issued, NHAI must have, and in fact has,
moved into action by making application to the competent
authorities under the environmental laws, as well as, forest laws
to accord necessary permissions.
67. Considering the provisions of the 1956 Act and the 1988
Act, NHAI can take over the work of development and
maintenance of the concerned national highway only if the
notified land is vested in it or when the same is entrusted to it by
126
the Central Government. From the scheme of the enactments in
question, as soon as notification under Section 3A is issued, it is
open to the Central Government to issue direction/notification in
exercise of power under Section 5 of the 1956 Act read with
Section 11 of the 1988 Act so as to entrust the development of
the proposed national highway to NHAI. Upon such entrustment,
NHAI assumes the role of an executing agency and only
thenceforth can move into action to apply for requisite
permissions/clearances under the environmental/forest laws
including as provided in terms of notification/Office
Memorandum dated 14.9.2006 and 7.10.2014 respectively.
68. It is not in dispute that environmental/forest clearance is
always site specific and, therefore, until the site is identified for
construction of national highways manifested vide Section 3A
notification, the question of making any application for
permission under the environmental/forest laws would not arise,
as predicated in Office Memorandum dated 7.10.2014. The site
is identified only in reference to the notification under Section 3A
of the 1956 Act, giving description of the land which is proposed
127
to be acquired for public purpose of building, maintenance,
management or operation of the national highway or part thereof.
69. Considering the interplay of provisions empowering the
Central Government coupled with the purport of the
notification/Office Memorandum issued by the MoEF dated
14.9.2006 and 7.10.2014 respectively, it will be paradoxical to
countenance the argument that the Central Government is
obliged to seek prior approval/permission of the competent
authorities under the environment/forest laws, as the case may
be, even before issuing notification under Section 2(2) or for that
matter, Section 3A of the 1956 Act.
RE: DEEMED LAPSING AND THE WAY FORWARD
70. Reverting to the dictum of this Court in
Karnataka
Industrial Areas Development Board (supra), it must be
understood to mean that the declaration under Section 3D
regarding acquisition of notified land, be made only after
environmental/forest clearance qua the specific land is granted.
To put it differently, the necessity of prior environmental/forest
clearance would arise only if finally, the land in question (site
128
specific) is to be notified under Section 3D, as being acquired for
the purposes of building, maintenance, management or operation
of the national highway or part thereof. Such interpretation
would further the cause and objective of environment and forest
laws, as also not impede the timeline specified for building,
maintenance, management or operation of the national highway
or part thereof, which undeniably is a public purpose and of
national importance. This would also assuage the concerns of
the land owners that even if eventually no environment
permission or forest clearance is accorded, the land cannot be
reverted to the original owner as it had vested in the
de jure
Central Government upon issue of notification under Section 3D
of the 1956 Act and no power is bestowed on the Central
Government under this Act to withdraw from acquisition.
We are conscious of the fact, as has been rightly argued by
71.
the appellantsauthorities, that it is essential to issue a
declaration under Section 3D of the 1956 Act within a period of
one year from the date of publication of the notification under
Section 3A in respect of the notified land, failing which
notification under Section 3A ceases to have any effect. It is
129
possible that whilst pursuing the proposal for
environmental/forest clearance after notification under Section
3A, some time may be lost, even though the process under the
1956 Act for acquisition of the land had become ripe for issue of
declaration of acquisition under Section 3D. It is also true that
time spent for obtaining environmental clearance or permission
under the forest laws has not been explicitly excluded from the
period of one year to be reckoned under Section 3D(3) of the Act.
The extension of time or so to say suspension of time is only in
respect of period during which the action of the proceedings to be
taken in pursuance of notification under Section 3A(1) is stayed
by an order of Court. In other words, there is no express
provision in the 1956 Act, which excludes the time spent by the
Central Government or the executing agency in obtaining prior
environmental clearance or permission under forest laws, as the
case may be. To get over this predicament, by an interpretative
process and also by invoking plenary powers of this Court under
Article 142 of the Constitution, we hold that the dictum in
paragraph 100(1) of Karnataka Industrial Areas
Development Board (supra), shall operate as a stay by an order
of the Court for the purposes of Section 3D(3) in respect of all
130
projects under the 1956 Act, in particular for excluding the time
spent after issue of Section 3A notification, in obtaining the
environmental clearance as well as for permissions under the
forest laws. Only this approach would further the cause of
environment and forest laws, as also, the need to adhere to the
timeline specified under Section 3D(3) for speedy execution of the
work of construction of national highway, which is also for a
public purpose and of national importance. In other words,
balancing of competing public interests/public purposes need to
be kept in mind as being the only way forward for accomplishing
the goal of sustainable development.
72. The argument of the writ petitioners that the expression
“shall” occurring in Section 3D(1) be interpreted as “may”, though
attractive on the first blush, deserves to be rejected. If that
interpretation is accepted, it would render the efficacy of Section
3D(3) of lapsing of the acquisition process otiose. It is a
mandatory provision. Instead, we have acceded to the alternative
argument to give expansive meaning to the proviso in Section
3D(3) of the 1956 Act by interpretative process, including by
invoking plenary powers of this Court under Article 142 of the
131
Constitution to hold that the dictum of this Court in Karnataka
(supra) be regarded as
Industrial Areas Development Board
stay granted by the Court to all notifications issued under
Section 3A of the 1956 Act until the grant or nongrant of
permissions by the competent authorities under the
environmental and forest laws, as the case may be, including
until the stated permissions attain finality. In other words, time
spent by the executing agency/Central Government in pursuing
application before the concerned authorities for grant of
permission/clearance under the stated laws need to be excluded
because of stay by the Court of actions (limited to issue of
notification under Section 3D), consequent to notification under
Section 3A. Thus, the acquisition process set in motion upon
issue of Section 3A notification can go on in parallel until the
stage of publication of notification under Section 3D, which can
be issued after grant of clearances/permissions by the competent
authority under the environment/forest laws and attaining
finality thereof.
73. In the present case, it is noticed that the NHAI being the
executing agency, had soon submitted Terms of Reference to the
132
MoEF after publication of notification under Section 2(2) of the
1956 Act dated 1.3.2018, declaring the section CKS (NC) as a
national highway. That was submitted on 19.4.2018 and the
approval in furtherance thereof was granted by the MoEF on
8.6.2018, consequent to the recommendation made by the EAC
on 7.5.2018. Indeed, the NHAI thereafter submitted amendment
to the Terms of Reference on 5.7.2018 and 21.8.2018. The EAC
after examining the amendment in Terms of Reference, submitted
its recommendation on 30.8.2018. It is also matter of record and
stated on affidavit by the EAC that no lapses have been
committed by the NHAI in complying with necessary formalities.
Similarly, NHAI had submitted application on 12.5.2018 to
Conservator of Forests for grant of permissions under the forest
laws in respect of lands forming part of the notification under
Section 3A of the 1956 Act. That application was duly processed
and the permission was granted by the competent authority
under the forest laws on 8.6.2018. Concededly, these
permissions/clearances have been issued by the concerned
authorities under the environment and forest laws after
notification under Section 3A and before issuance of declaration
under Section 3D of the 1956 Act. In terms of this decision,
133
therefore, the time spent for obtaining such clearances including
till the pronouncement of this decision and until the stated
permissions/clearances attain finality, whichever is later, as the
matter had remained , need to be excluded. Even after
sub judice
excluding such period, if any notification under Section 3A
impugned before the High Court is not saved from the deemed
lapsing effect predicated in Section 3D(3), the Central
Government may have to issue fresh notification(s) under Section
3A of the 1956 Act and recommence the process of acquisition, if
so advised. We are not expressing any final opinion in that
regard. However, such fresh notifications may be issued only in
respect of land forming part of permissions/clearances given by
the competent authority under the environment/forest laws,
being site specific.
OTHER CONTENTIONS
74. That takes us to the grievance regarding the same
Consultant being continued for the changed section i.e. CKS
(NC). Indeed, the eligibility of the Consultant was in reference to
the originally conceived project concerning CM (EC). It was
134
found eligible to undertake the consultancy work for the said
project and letter dated 29.9.2017 was also issued by NHAI. In
the Committee’s meeting chaired by the Secretary of MoRTH on
19.1.2018, new alignment was finalised thereby deviating from
the original project of CM (EC). Instead, section CKS (NC)
was finalised. However, the same Consultant had been
continued by execution of a contract agreement dated 22.2.2018
for the changed stretch/section. This was done as the terms and
conditions were same. Indeed, it was vehemently contended
before us that the authorities should have followed the procedure
stipulated for appointment of Consultant for the changed project
afresh. However, we find that in none of the writ petitions filed
before the High Court, express declaration had been sought or for
that matter, the contract agreement dated 22.2.2018 executed
between NHAI and the Consultant came to be challenged.
Moreover, the terms and conditions of appointment of the
Consultant would have no financial ramifications, considering
the fact that the consultancy charges were to be paid on per
kilometre basis; and in fact due to change of alignment, the
length of proposed national highway stood reduced to only
around 277 kms. (instead of original stretch [CM (EC)] of around
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350 kms.) Further, no challenge is set forth regarding the
qualification and eligibility of the Consultant as such. Notably,
the decision to change the stretch/section from Economic
Corridor to National Corridor was that of the Committee. It was
not founded on the recommendation of the Consultant, as has
been assumed by the writ petitioners and so propounded before
the high Court. The decision of the Committee was backed by
tangible reasons as recorded in the minutes and also intrinsic in
it its vast experience about the efficacy of governing policies for
developing seamless national highway connectivity across the
country. In any case, irregularity, if any, in the appointment of
the Consultant cannot be the basis to quash and set aside a well
considered decision taken by the Committee after due
deliberations, much less the impugned notifications under
Section 2(2) or Section 3A(1) of the 1956 Act. We therefore, hold
that the High Court should have eschewed from expressing any
opinion on the manner of appointment of the same Consultant
for the changed section/stretch [CKS (NC)], as no relief
challenging its appointment was sought and thus it was not the
matter in issue before it; and for the same reason, we do not wish
to dilate on this aspect any further. Thus understood, the
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dictum of this Court in decisions relied upon by the
respondents/writ petitioners in K. Lubna (supra) and Shrilekha
(supra) will be of no avail in this case.
Vidyarthi
75. Having dealt with the merits of the controversy in extenso , it
is unnecessary to dilate on the question of maintainability of the
writ petitions being premature.
CONCLUSION
76. Before we conclude and for the completion of record, we
may advert to the direction issued by the High Court in
paragraph 106 of the impugned judgment as reproduced
hitherto. The High Court directed the concerned revenue
authorities to restore the mutation entries effected in favour of
the acquiring body/NHAI merely on the basis of notification
under Section 3A of the 1956 Act. By virtue of notification under
Section 3A of the 1956 Act, neither the acquiring body nor the
NHAI had come in possession of the concerned land nor the land
had vested in them, so as to alter the mutation entry in their
favour. To that extent, we agree with the High Court that until
the acquisition process is completed and possession of land is
137
taken, the question of altering the mutation entry merely on the
basis of notification under Section 3A of the 1956 Act cannot be
countenanced and, therefore, the earlier entries ought to be
restored. That direction of the High Court needs no interference.
While parting, we must place on record that we have not
77.
expressed any opinion either way on the correctness and validity
of the permissions/clearances accorded by the competent
authorities under the environment and forest laws, as the case
may be. For, those orders were not the subject matter or put in
issue before the High Court. Therefore, it would be open to the
affected persons to question the validity thereof on grounds, as
may be permissible, before the appropriate forum. All
contentions available to parties in that regard are left open.
78. We need to place on record that we have not dilated on
other decisions adverted to and relied upon before us by the
learned counsel appearing for the concerned parties, to avoid
prolixity and also because the same have no bearing on the
questions dealt with by us hitherto. In our opinion, appeals filed
by the authorities ought to succeed merely on the issues
answered by us for dismissing the challenge to notifications
138
under Section 2(2) and Section 3A of the 1956 Act, in the
concerned writ petitions. Further, we do not wish to deal with
the decisions relied upon, that the Project of this nature may
have environmental impact and ought not to be taken forward.
As aforesaid, we have not examined the efficacy of the
permissions/clearances granted by the competent authority
under the environment or forest laws, as the case may be. If
those permissions/clearances are assailed, only then the
decisions in (supra),
Hanuman Laxman Aroskar M.C. Mehta
(supra) and Bengaluru Development Authority (supra) may be
looked at. Inasmuch as in those cases, the Court was called
upon to examine the challenge in the context of permissions
given by the competent authority under the environment laws.
Needless to observe that if any decision of the High Courts,
79.
which had been relied upon is not in consonance with the view
taken by us, the same be treated as impliedly overruled in terms
of this decision. We do not wish to multiply the authorities of the
High Courts as commended to us on the issues answered in this
judgment.
139
80. In view of the above, the appeals filed by the Union of India
and NHAI (Civil Appeals arising out of SLP(C) Nos. 13384
85/2019, 1609816100/2019, 1857718580/2019, 19160
19166/2019, 17751776/2020, 17771780/2020 and 1781
1783/2020) are partly allowed in the aforementioned terms; but
the appeal filed by the land owner(s)/aggrieved party(ies) (Civil
Appeal arising out of SLP(C) No. 18586/2019) stands dismissed.
The impugned judgment and order is modified to the extent
indicated in this judgment. The challenge to impugned
notifications under Sections 2(2) and 3A of the 1956 Act,
respectively, is negatived. The direction issued (in paragraph 106
of the impugned judgment) to the concerned authorities to
restore the subject mutation entries is, however, upheld.
81. The Central Government and/or NHAI may proceed further
in the matter in accordance with law for acquisition of notified
lands for construction of a national highway for the proposed
section/stretch CKS (NC), being NH Nos. 179A and 179B.
82. There shall be no order as to costs. Pending interlocutory
applications, if any, shall stand disposed of.
140
83. We place on record our appreciation for the able assistance
given by the learned counsel for the parties and for being brief in
their presentations despite the complexity of the issues and
bulky record due to batch of cases being heard together including
the daunting task of interacting through video conferencing
(virtual Court) due to ongoing pandemic.
................................., J.
(A.M. Khanwilkar)
….............................., J.
(B.R. Gavai)
................................., J.
(Krishna Murari)
New Delhi;
December 08, 2020.
